Re Minister for the Environment; Ex Parte Elwood
[2007] WASCA 137
•29 JUNE 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RE MINISTER FOR THE ENVIRONMENT; EX PARTE ELWOOD & ANOR [2007] WASCA 137
CORAM: ROBERTS-SMITH JA
McLURE JA
BUSS JA
HEARD: 13 & 14 DECEMBER 2006
DELIVERED : 29 JUNE 2007
FILE NO/S: CACV 77 of 2006
MATTER :Application for a Writ of Certiorari against the MINISTER FOR THE ENVIRONMENT
EX PARTE
ANTONY JOHN ELWOOD
TEEWANA FARM PTY LTD (ACN 121 917 155)
ApplicantsAND
MINISTER FOR THE ENVIRONMENT
First RespondentHANSON CONSTRUCTION MATERIALS PTY LTD (ACN 009 679 734)
Second Respondent
Catchwords:
Administrative law - Application for a writ of certiorari to quash decisions of Minister for the Environment - Minister made decisions pursuant to s 45C and s 46 of the Environmental Protection Act 1986 (WA) - Object of the Act and overview of Pt IV of the Act - Nature and scope of a "proposal", a "significant proposal", and a "revised or further proposal" under the Act - Nature and scope of the discretionary power under s 45C - Meaning of "considers" and "might" in s 45C - Whether, pursuant to s 45C, the Minister can "retrospectively" approve of changes to a proposal which have already been implemented - Whether the Minister failed properly to consider a relevant consideration - Whether the Minister failed properly to apply the test prescribed by s 45C, or took into account an irrelevant consideration - Whether s 45C decision made for an ulterior purpose, or made in reliance on an irrelevant consideration - Whether the applicant was denied procedural fairness - Whether s 45C decision was manifestly unreasonable - Wednesbury unreasonableness - Whether s 46 decision to amend conditions applying to a changed proposal void if changed proposal void under s 45C - Whether s 46 decision made for an ulterior purpose, or made in reliance on an irrelevant consideration
Legislation:
Environmental Protection Act 1986 (WA), s 3, s 4A, s 15, s 37B, s 38, s 39A, s 40, s 40A, s 41, s 41A, s 42, s 43, s 43A, s 44, s 45, s 45B, s 45C, s 46, s 46B, s 46C, s 47, s 48, s 51C, s 74A, Pt IV, Pt V, Sch 6 (item 2)
Result:
Order nisi discharged
Category: A
Representation:
Counsel:
Applicants: Dr J T Schoombee & Mr V S Paparo
First Respondent : Mr R M Mitchell
Second Respondent : Mr C P Stevenson
Solicitors:
Applicants: Freehills
First Respondent : State Solicitor
Second Respondent : Clayton Utz
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
Buck v Bavone (1976) 135 CLR 110
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136
Currey v Sutherland Shire Council (1998) 100 LGERA 365
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Finance Facilities Pty Ltd v Commissioner of Taxation (Cth) (1971) 127 CLR 106
Greendene Development Corporation Pty Ltd v Environmental Protection Authority (2003) 28 WAR 107
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Ireland v Cessnock City Council (1999) 103 LGERA 285
Ireland v Cessnock City Council (1999) 110 LGERA 311
Kioa v West (1985) 159 CLR 550
Leach v The Queen (2007) 81 ALJR 598
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38
Parramatta City Council v Hale (1982) 47 LGRA 319
Puhlhofer v Hillingdon London Borough Council [1986] AC 484
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678
Thompson v Randwick Corporation (1950) 81 CLR 87
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Weal v Bathurst City Council (2000) 111 LGERA 181
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
ROBERTS-SMITH JA: I agree with the reasons of Buss JA.
McLURE JA: I agree with Buss JA that the order nisi should be discharged. The decisions under review, facts, statutory provisions, evidence and grounds on which the applicants rely are detailed in Buss JA's reasons and not repeated here unless required for an understanding of these reasons.
Part IV of the Environmental Protection Act 1986 (WA) ("Act") deals with the referral, assessment and implementation of proposals that are likely, if implemented, to have a significant effect on the environment. The proposal in this case was to relocate an existing hard rock quarry ("Pioneer No 1") at the second respondent's property at Herne Hill to another area on the same property ("Pioneer No 2"). The general location of the proposed quarry was described in a Public Environmental Review ("PER") conducted on behalf of the second respondent. A Ministerial statement published under s 45(5) of the Act approved the proposal to relocate the quarry operation on specified implementation conditions ("the original proposal"). One of the implementation conditions (known as commitment 22) was that Pioneer No 2 would not be visible from ground level outside the second respondent's property. Under s 46 of the Act, the Minister later deleted this condition ("the s 46 decision").
The original proposal was for two quarry pits described in the PER as the west pit and the east pit. The second respondent had commenced quarrying in an area described as the northwest extension to the west pit ("the northwest extension") which was accepted by all parties as being outside the scope of the original proposal. There was a dispute as to whether the then existing southern boundary of the west pit was within the scope of the original proposal. Under s 45C of the Act, the Minister approved a change in the boundaries of the west pit to include (at least) the northwest extension ("the s 45C decision").
Section 45C of the Act provides:
"(1)After a statement has been issued under section 45(5) in relation to a proposal, the Minister may approve of the proponent changing the proposal without a revised proposal being referred to the Authority under this Part.
(2)The Minister must not give approval under subsection (1) if the Minister considers the change or changes to the proposal might have a significant detrimental effect on
the environment in addition to, or different from, the effect of the original proposal."
Ground A ‑ Partially implemented change
The applicants contended that the Minister did not have power under s 45C to approve the change to the original proposal by enlarging the boundaries of the west pit because work in the areas outside the site the subject of the original proposal had already commenced. The evidence does not support a finding that work in the area outside the approved footprint was substantially implemented.
The term "proposal" is relevantly defined in s 3 of the Act to mean "a project, plan, programme, policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing". However, there is nothing significant in the use of that term, which on its natural and ordinary meaning suggests futurity, because under the Act a proposal remains a proposal after the publication of a Ministerial statement under s 45(5) and during the course of its implementation: Greendene Development Corporation Pty Ltd v Environmental Protection Authority (2003) 28 WAR 107 at [31] ‑ [43].
Part IV of the Act is relevantly confined to the referral and assessment of significant proposals. A significant proposal is defined to mean "a proposal likely, if implemented, to have a significant effect on the environment". Although the definition is consistent with events in prospect, the question remains whether Pt IV of the Act is confined to proposals that are wholly executory. The focus of Pt IV is on activities with the potential to have a significant effect on the environment. The potential for a significant environmental effect may not become apparent until after work on a proposal has commenced, which suggests that a proposal does not have to be wholly executory to be governed by Pt IV. However, assuming without deciding that Pt IV applies to a proposal on which work has commenced, that does not itself answer the question whether a change to the original (approved) proposal to which s 45C applies must be wholly executory. In that regard it is clear the Minister can approve a change under s 45C during the implementation of the original proposal. It is also the case that an original proposal with changes is referred to in the Act as a "revised proposal" from which it follows that work on the revised proposal may have commenced at least under the original proposal.
The answer to the question whether a change can be partially implemented prior to approval under s 45C depends on the scheme and purpose of the Act. The object of the Act is to protect the environment of the State having regard to the principles set out in s 4A which include careful evaluation to avoid, where practicable, serious or irreversible damage to the environment.
Where a significant proposal is referred to the Environmental Protection Authority ("Authority") under Pt IV (s 38) of the Act, the Authority has to decide whether or not to assess the proposal (s 39A). If the Authority assesses a proposal, it has the power to require a proponent to undertake an environmental review or it can conduct a public inquiry (s 40). If it decides to assess a proposal, a person commits an offence if he or she does anything to implement the proposal before a statement is published under s 45(5) or notification is given under s 45(8) (s 41A). Section 45 contains the procedure for deciding on proposals. Under that procedure, it may be determined that the proposal may not be implemented or that it may be implemented with or without implementation conditions (s 45(5) and s 45(8)). The power and procedures for changing an implementation condition (other than a change of a minor nature) are contained in s 46. Under s 47 of the Act, a proponent commits an offence if it does not ensure that any implementation of the proposal is carried out in accordance with the implementation conditions. Section 48 provides for action, other than the institution of a prosecution, which may be taken by the Minister when it is found that a proponent is not complying with implementation conditions.
Thus, Pt IV of the Act is the source of the power to prohibit or regulate, by the imposition and monitoring of implementation conditions, proposals that are likely to have a significant effect on the environment. If the Authority considers that a proposal is significant it must require the proponent (or a public authority empowered to make a decision in respect of the proposal) to refer the proposal to the Authority (s 38(5c)). Otherwise, there is no express or implied obligation on a proponent to refer a significant proposal to the Authority. Further, there is no express or implied prohibition in the Act against implementing a proposal that is likely to have a significant effect on the environment. Instead, Pt V of the Act makes it an offence to cause pollution and unreasonable emissions (s 49), discharge waste in circumstances in which it is likely to cause pollution (s 50), cause serious environmental harm (s 50A) or cause material environmental harm (s 50B). In addition, permits, approvals or licences are required for activities identified in Div 2 and Div 3 of Pt V of the Act.
An approved proposal under s 45(5) is a defence to certain offences under the Act. Section 74A provides that it is a defence to proceedings under Pt V of the Act for causing pollution, in respect of an emission, or for causing serious environmental harm or material environmental harm if the person charged with that offence proves that the pollution, emission or environmental harm occurred:
(a)in the implementation of a proposal in accordance with an implementation agreement or decision under s 45(5);
(b)in accordance with, inter alia, a clearing permit, a works approval or a licence under the Act.
The s 45C decision operates prospectively to cover work in the area the subject of the approval. Approval of the revised proposal is not a defence to any breach of the Act committed prior to the grant of approval.
The respondents also contended that the implementation conditions of an approved proposal cannot apply to work undertaken outside the scope of that proposal. The correctness of that proposition depends on the scope of the power in s 45(5) to impose implementation conditions; in particular, whether an implementation condition can prohibit activity outside the area the subject of the (approved) proposal. If such a condition was within power and was imposed, the source of the power to change the condition would not be s 45C but s 46 (or s 46C) of the Act. The absence of a statutory prohibition on implementing a significant proposal, and the fact that a proponent of a significant proposal is not obliged to refer it to the Authority, support the respondents' contention.
As with a significant proposal, the Act does not expressly prohibit a proponent from implementing a change to an approved proposal and there is no express obligation on a proponent to refer a revised proposal to the Authority. I am satisfied that the legislative scheme relating to significant proposals is also intended to apply to revised proposals with the consequence that there is no implied statutory prohibition or obligation to the stated effect.
Against that background, there is no basis in the language or purpose of the Act to confine the Minister's power in s 45C to approving a change that is wholly prospective. The power to approve a change only arises if the change has no potential to have a further significant detrimental effect on the environment. That is, the Minister cannot approve a change under s 45C if he or she considers the change might have a significant detrimental effect on the environment in addition to or different from the effect of the original proposal. On the other hand, the effect of approving the change is that the implementation conditions relating to the original proposal apply to the revised proposal (s 45B). The construction contended for by the respondents advances the objects of the Act.
Accordingly I conclude that, consistently with the scheme and purpose of the Act, the Minister has the power under s 45C to approve a change to an original proposal notwithstanding that the change is partially implemented. I would dismiss ground A.
Ground B ‑ Relevant considerations
The applicants contended that the Minister failed to give any, or any proper, consideration to quarrying activities at the southern end of the west pit, in particular, the materially increased height at which quarrying occurred in that area.
A relevant consideration is one which the decision‑maker is expressly or impliedly obliged to take into account in the course of reaching the decision under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. The relevant legislation may specify the particular matters that are to be considered or the obligation may arise by implication from the subject matter, scope and purpose of the legislation.
The applicants' case was that the second respondent had quarried in an area approximately 94 metres beyond the approved southern boundary of the west pit which area was at a higher elevation (240 metres) than the southern boundary of the approved pit (172 metres). Thus, the applicants' position was that the activities and proposed activities in the southern extension were outside the approved footprint under the original proposal and, for the purposes of s 45C(2), the Minister had to consider whether the work on the southern extension might have a significant detrimental effect on the environment in addition to, or different from, the effect of the original proposal.
The respondents contended on the other hand that on a proper construction of the Minister's reasons for the s 45C decision, she had concluded that the work at the southern end of the west pit was within the approved footprint (and that such a finding was open on the evidence). Thus, the respondents' position was that as the work at the southern end of the west pit was within the approved footprint it was included in the yardstick against which the environmental effects of the changes had to be measured. If the respondents are correct, the applicants must fail on this ground.
The Minister's reasons for the s 45C decision are foreshadowed in her letter dated 21 December 2005 to the first‑named applicant. The term "west pit" is used in the reasons to refer to all areas of the then current operation save for what is referred to in the reasons as the extension to the northwest of the west pit. The reasonable inference from the reasons as a whole (comprising 11 pages) is that the Minister concluded that what the applicants referred to as the southern extension was within the approved footprint under the original proposal. I agree with Buss JA for the reasons he gives that it was open to the Minister to reach that conclusion. I would dismiss this ground.
Ground C ‑ Wrong test/irrelevant consideration
It was an implementation condition of the original proposal, being commitment 22, that:
"The Pioneer No.2 operations will not be visible from ground level outside Pioneer property once screening bunds and vegetation are established. Screening vegetation will be established around the Pioneer No.2 infrastructure site and north‑west of the quarry pits to screen the operations from view."
The Authority reported to the Minister and she accepted that (1) the Pioneer No 2 operations were visible from the first‑named applicant's property and from other areas in the Darling Range and on the coastal plains; (2) regardless of the establishment of the measures referred to in commitment 22, being screening bunds and vegetation, the quarry would still be visible from the first-named applicant's property and elsewhere; (3) commitment 22 was imposed on the basis of inaccurate predictions in a Visual Impact Assessment undertaken as part of the PER.
When considering the changes to the original proposal and the effect they might have for the purposes of s 45C(2), the Minister made the assessment by reference to the actual effect on visual amenity of the original proposal rather than its intended effect as reflected in commitment 22.
The applicants contended that the expression "original proposal" in s 45C(2) is a reference to what has been approved under s 45(5), being the original proposal together with the implementation conditions. It follows, according to the applicants, that the effect of the original proposal is that Pioneer No 2 quarry would not be visible from outside the second respondent's property and that is the yardstick by which to measure the effect of the relevant changes. It may be accepted that ordinarily the environmental effect of the original proposal would be determined by reference to both the original proposal and the implementation conditions because there should be a correlation between the actual effect or impact of the proposal as implemented in accordance with the implementation conditions and its intended effect or impact. However, in this case there is an irreconcilable conflict between the original proposal and compliance with one of the implementation conditions on which approval was granted.
The respondents contend that the expression "original proposal" in s 45C(2) is separate and distinct from the implementation conditions relating to that proposal. It is the case that the Act consistently draws a distinction between a proposal, including an original proposal and a revised proposal, and the implementation conditions relating thereto: s 45(5), s 45B, s 46, s 46B(1). However, in recognition of the fact that the implementation conditions may affect the nature or extent of any detrimental environmental effect, a major change to an implementation condition is to be referred to the Authority under s 38(5) "as a new proposal" (s 46B(2)). That is in substance a deeming provision.
I accept that the expression "original proposal" in s 45C(2) does not include the implementation conditions that relate to that (approved) proposal. However, when considering for the purposes of s 45C(2) the "effect of the original proposal" on the environment, regard must also be had to the implementation conditions that relate to or regulate the environmental effect. That raises for consideration the consequence of a direct conflict between an original proposal and an implementation condition (the breach of which is an offence under s 47). Is one or the other invalid to the extent of the inconsistency and, if so, which has primacy? However, it is unnecessary to determine this issue. For the reasons given by Buss JA, commitment 22 had been deleted prior to the s 45C decision. Accordingly, the fact that the Minister ignored the intended effect of commitment 22 (either because it was inconsistent with the original proposal or because she proposed to remove it) does not invalidate the s 45C decision. I would dismiss this ground.
Ground D ‑ Improper purpose
The applicants contended that the Minister made the s 45C decision for an ulterior purpose, being to retrospectively approve quarrying activities that had gone beyond the approved footprint under the original proposal. The submission is based on a misapprehension. The s 45C decision operates prospectively and cannot be used as a defence to any breach of the Act arising from the second respondent's quarrying operations prior to the grant of approval. If the decision does not have a retrospective effect it can hardly be contended that the Minister was actuated by this improper purpose.
The Minister's stated purpose in making the s 45C decision was to ensure that the implementation conditions applied to the northwest extension of the west pit. That is clearly within the statutory authorised purposes for which the discretionary power is given in s 45C of the Act.
Ground E ‑ Natural justice
The first‑named applicant claims he had a right to be heard in relation to the proposed s 45C decision relying on his physical proximity to the quarry, the consequential impact of the quarry on his visual amenity, his participation in inquiries conducted by the Authority relating to Pioneer No 2 and a civil action commenced by him against the respondents for breach of s 47 of the Act (relying on alleged breaches of commitment 22 and quarrying outside the approved footprint), negligence and nuisance. I agree with Buss JA for the reasons he gives that there was no obligation on the Minister to provide the first‑named applicant with an opportunity to be heard concerning the exercise of the Minister's power under s 45C of the Act.
Even if the first‑named applicant had any such right, I am not satisfied it was breached. The first‑named applicant was advised in the Minister's letter of 21 December 2005 that she proposed to make a decision under s 45C of the Act subject to the second respondent providing her with further documentation. The s 45C decision was not made until 25 January 2006. Thus, the first‑named applicant was informed of the Minister's proposal and had an adequate opportunity to make submissions. I would dismiss this ground.
Ground F ‑ Unreasonableness
The applicants rely on the traditional statement of the law to the effect that a reviewable error of law for unreasonableness is only made
out if it is shown that no reasonable person could have reached the decision under challenge, a test aimed at ensuring the court does not exceed its supervisory role by reviewing a decision on its merits: Peko‑Wallsend at 41 ‑ 42.
In support of their challenge the applicants rely on their claims that the s 45C decision operated retrospectively, that quarrying activities had already commenced outside the approved footprint, the content of commitment 22 and matters relating to the southern extension (on the assumption it fell outside the approved footprint). None of these claims have been upheld and thus do not support a claim that the s 45C decision is unreasonable.
The only remaining matter is a statement in the Minister's letter dated 21 December 2005 that the visual impact of the northwest extension would increase as extraction continued. A mere increase in what is visible does not require a conclusion that there might be a significant detrimental effect on the environment that was in addition to or different from the effect of the original proposal. That is, an increase in visibility may in context have negligible additional impact. The Minister concluded that the extension was simply a continuation of the actual impact of the original proposal. I would dismiss this ground.
Section 46 decision
I would dismiss the challenge to the s 46 decision for the reasons given by Buss JA.
BUSS JA: On 17 May 2006, the first‑named applicant ("the applicant") obtained an order calling upon the Minister for the Environment ("the Minister") to show cause why a writ of certiorari should not be issued against him to remove into this Court, for the purpose of being quashed:
(a)the Minister's decisions, said to have been made on 21 December 2005 and 25 January 2006, pursuant to s 45C of the Environmental Protection Act1986 (WA) ("the Act") (together "the s 45C Decision"), approving changes to an original proposal relating to the operation of a quarry by Hanson Construction Materials Pty Ltd ("Hanson") which was approved by the Minister on 5 December 1991 ("the 1991 Decision"); and
(b)the Minister's decision, said to have been made on 21 December 2005, pursuant to s 46 of the Act ("the s 46 Decision"), amending various implementation conditions of the approval embodied in
the 1991 Decision, and applying those amended conditions to the changed proposal.
The second‑named applicant was joined as a party on the return of the order nisi.
The occupants of the office of the Minister
The Honourable Dr Judy Edwards MLA was the Minister responsible for the s 45C Decision and the s 46 Decision. In 1991, the Honourable Mr Bob Pearce MLA was the Minister. When these proceedings were commenced, the Honourable Mr Mark McGowan MLA occupied the office.
The Environmental Protection Act 1986 (WA): Relevant statutory framework
A proper understanding of the relevant background facts and circumstances, and the legal issues, in these proceedings requires some familiarity with the relevant statutory framework.
The object of the Act is to protect the environment of the State, having regard to the principles enumerated in s 4A. Also see the long title to the Act. Section 15 provides that it is the objective of the Environmental Protection Authority ("the Authority") to use its best endeavours to protect the environment, and to prevent, control and abate pollution and environmental harm.
The term "environment" is defined, in s 3(1), as follows:
"subject to subsection (2), [environment] means living things, their physical, biological and social surroundings, and interactions between all of these;"
Section 3(2) provides:
"For the purposes of the definition of 'environment' in subsection (1), the social surroundings of man are his aesthetic, cultural, economic and social surroundings to the extent that those surroundings directly affect or are affected by his physical or biological surroundings."
See the analysis of the definition of "environment" in Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136 at 147 ‑ 150.
A "proposal" is defined, in s 3(1), to mean, relevantly:
"a project, plan, programme, policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing …"
The term "proponent", in relation to a proposal, is defined in s 3(1), to mean, relevantly, the person who or which is responsible for the proposal. "Implementation conditions" is defined, in s 3(1), to mean the conditions and procedures, if any, agreed or decided in relation to a proposal under s 45 (or under s 45 as applied by s 46(8)).
Part IV contains provisions relating to, relevantly, the referral and assessment of proposals, and the implementation of proposals.
By s 38(1), relevantly, any person may refer a "significant proposal" to the Authority. The term "significant proposal" is defined, in s 37B(1), to mean, for the purposes of Div 1 of Pt IV, a proposal "likely, if implemented, to have a significant effect on the environment". Section 38(5c) provides, relevantly, that if the Authority considers that a proposal that is a "significant proposal" has not been referred to it under subs (1), (4) or (5), the Authority must require the proponent to refer the proposal to it. Section 38(5h) provides, in turn, relevantly, that a proponent which is required by the Authority to refer a proposal pursuant to s 38(5c) must do so within the period specified in the requirement. By s 38(5j), subject to s 46B(2), a proposal cannot be referred to the Authority under s 38 more than once, unless assessment of it has been terminated under s 40A.
Section 39A provides that when a proposal is referred to the Authority under s 38, the Authority is to decide whether or not to assess it. If the Authority assesses a proposal, the manner of assessment is determined by it in accordance with s 40. For example, the Authority may, for the purposes of assessing a proposal:
(a)require the proponent to undertake an environmental review and to report on the review to the Authority (s 40(2)(b)); or
(b)with the approval of the Minister and subject to s 42, conduct a public inquiry in such manner as it sees fit, or appoint a committee consisting of specified members to conduct a public inquiry and report to the Authority on its findings on the public inquiry (s 40(2)(c)).
As well as taking one or more of the courses of action set out in s 40(2), the Authority may make such other investigations and inquiries as it thinks fit (s 40(2a)). Section 40A empowers the Authority to terminate the assessment of a proposal in specified circumstances.
Section 41 prohibits persons from making a decision that could have the effect of causing or allowing a referred proposal to be implemented, until the assessment process is completed in a manner that allows the proposal to proceed. By s 41A, a person is prohibited from doing anything to implement a proposal which the Authority has decided to assess, until the assessment process is complete.
Section 44(1) provides that if the Authority assesses a proposal, it is to prepare a report on the outcome of its assessment and give that report (the "assessment report") to the Minister. By s 44(2), the assessment report must set out:
(a)what the Authority considers to be the key environmental factors identified in the course of the assessment; and
(b)the Authority's recommendations as to whether or not the proposal may be implemented and, if it recommends that implementation be allowed, as to the conditions and procedures, if any, to which implementation should be subject.
The Minister is obliged, under s 44(3), to cause the assessment report to be published.
Section 45 provides for the making of a decision as to whether or not a proposal may be implemented. By s 45(1), the Minister is required, after he has caused an assessment report to be published under s 44(3), to consult with specified persons on whether or not the proposal to which the report relates may be implemented and, if the proposal may be implemented, to what conditions and procedures, if any, that implementation should be subject. If the implementation agreement or decision is that the proposal may be implemented, or may be implemented subject to implementation conditions, s 45(5) requires the Minister to cause copies of a statement setting out the implementation agreement or decision to be served on specified persons and then published. Also see s 45(8).
Section 45B provides that if a proposal is revised after implementation conditions have been agreed or decided, each of those conditions continues to apply in relation to the revised proposal, subject to:
(a)it being changed under s 46; or
(b)revised conditions or procedures being agreed or decided under s 45 in relation to the revised proposal after the revised proposal has been referred to the Authority and assessed.
Section 45C provides:
"(1) After a statement has been issued under section 45(5) in relation to a proposal, the Minister may approve of the proponent changing the proposal without a revised proposal being referred to the Authority under this Part.
(2)The Minister must not give approval under subsection (1) if the Minister considers the change or changes to the proposal might have a significant detrimental effect on the environment in addition to, or different from, the effect of the original proposal."
Section 46 provides, relevantly:
"(1) If the Minister considers that the implementation conditions relating to a proposal, or any of them, should be changed (whether because of changes to the proposal authorised under section 45C or for any other reason), the Minister may request the Authority to inquire into and report on the matter within such period as is specified in the request.
…
(3)The Authority is to carry out an inquiry in accordance with a request made under subsection (1).
…
(6)On completing an inquiry under subsection (3) …, the Authority is to prepare and give to the Minister a report that includes ‑
(a)a recommendation on whether or not the implementation conditions to which the inquiry relates, or any of them, should be changed; and
(b)any other recommendations that it thinks appropriate.
(7)As soon as the Minister is reasonably able to do so after receiving copies of a report under subsection (6), the Minister is to simultaneously cause that report to be published, and copies of that report to be given, as if that report were a report referred to in section 44(3).
(8)After causing a report to be published under subsection (7), the Minister is to deal with the question of whether or not the implementation conditions to which the report relates, or any of them, should be changed as if that question were the question of to what conditions and procedures, if any, the implementation of a proposal should be subjected, and section 45 applies to the first-mentioned question accordingly.
(9)A statement under section 45(5) as applied by subsection (8) may change any of the implementation conditions to which the report under subsection (6) relates.
…"
Section 46B(1) provides that s 46 does not prevent any of the implementation conditions relating to a proposal from being inquired into or reported on by the Authority when it is assessing a revised or further proposal. By s 46B(2), despite anything in s 46, if the Minister and any decision‑making authority that was consulted under the Act, in relation to the implementation conditions, agree that a proposed change to the implementation conditions is a major change, that decision‑making authority is to refer the proposed change to the Authority under s 38(5) as a new proposal. Section 46B(2) blurs the distinction, which is apparent elsewhere in the Act, between a proposal on the one hand and implementation conditions to which a proposal is subject on the other.
Section 46C(1) empowers the Minister to change the implementation conditions, without making a request under s 46(1), if the Minister considers that the change is of a minor nature and another specified condition is satisfied.
By s 3(3a), a reference in the Act to the changing of implementation conditions is a reference to:
(a)varying, removing or adding implementation conditions; or
(b)inserting implementation conditions where none existed.
If a statement has been served under s 45(5), and the proponent does not ensure that any implementation of the proposal to which the statement relates is carried out in accordance with the implementation conditions, then, by s 47(1), the proponent commits an offence. Section 48 specifies the action, other than the commencement of a prosecution, which may be taken by the Minister when it is found that the proponent is not complying with implementation conditions.
Hanson's 1990 proposal and PER
In 1961, Hanson (which was then known as Pioneer Concrete (WA) Pty Ltd) commenced operating a hard rock quarry on its property at Lot 11 Neuman Road, Herne Hill. The quarry is known as "Pioneer No 1".
In 12 January 1990, Hanson referred to the Authority a proposal to relocate its quarrying operations from Pioneer No 1 to another site on its property. The papers before this Court do not include a copy of the referral document, but it is not disputed that Hanson referred the original proposal under s 38(1) of the Act. The Authority determined that there should be a public environmental review ("PER") of the proposal in that the proposed new quarry (known as "Pioneer No 2" and sometimes described as being at Red Hill) was located in an area of natural bushland which was close to urban population areas and on a prominent landform. Pioneer No 2 is 1.5 kms to the east of Pioneer No 1. It is in a valley behind the main ridge of the Darling Scarp, which is the most prominent landform in the Perth metropolitan area.
In its PER dated September 1990, Hanson described and made submissions in support of the proposal to relocate its quarrying operations. The proposal is described in the PER as a proposal to relocate a hard rock quarry at Lot 11 Neuman Road, Herne Hill to another area on the same property (as shown in Figure 1 to the PER), and subsequently to close and decommission the existing works. The PER states, amongst other things:
(a)Pioneer No 2 would have "minimal visual impact" and the quarry and process works would be "out of public view". (AB 9)
(b)The visual impact of Pioneer No 2 would be "minimal" in that the quarry had been designed to be visible "only from within [Hanson's property]". (AB 11)
(c)As regards the location of Pioneer No 1 and Pioneer No 2:
(i)"Figure 1 shows air photograph coverage of the Herne Hill region showing the general location of Pioneer No 1 and Pioneer No 2, in relation to surrounding land uses." (AB 27) (My emphasis)
(ii)"The locations of Pioneer No 1 and Pioneer No 2 are shown in Figure 2. This figure shows the boundary of [Hanson's property] and the locations and proximity of the nearest sites of habitation east of the proposed quarry." (AB 27)
(iii)"The approximate layout of the Pioneer No 2 workings is shown in Figure 11. This figure shows the proposed locations of the quarry pit, primary and secondary crusher, conveyor, tertiary crusher/infrastructure area and asphalt plant. The layout shown is of necessity general, as planning for Pioneer No 2 is still in its early stages and the details of many elements have yet to be finalised. However, the major features will be confined within the boundaries shown in Figure 11." (AB 72) (My emphasis)
(iv)"Views of the proposed locations of the quarry pits, crushing plant and infrastructure sites are shown in Plates 1 to 5." (AB 72)
(v)Figure 15 shows, amongst other things, quarry pits described as the "west pit" and the "east pit", which are depicted by polygons. The west pit polygon has five sides and the east pit polygon has seven sides. (AB 157)
(d)Overburden would initially be used to construct and extend screening and drainage bunds. (AB 73)
(e)The major potential environmental impacts of the proposed quarry had been identified to include, relevantly, "visual impact". (AB 82)
(f)As regards visual impact (AB 110):
"Close‑range Visibility
Close‑range visibility is defined as the visual impact that the proposed quarry will have within the land owned by [Hanson]. It is only from within [Hanson's] property that the quarry workings will be visible once screening bunds and vegetation are established. Since the quarry is located on freehold land, the short‑range visual impact is of no public significance. The proposed quarry has been sited to eliminate visual impacts to Swan Valley residents and the general public.
Long‑range Visibility
A computer assessment of long‑range visibility taking into account the surrounding topography and vegetation, in conjunction with site visits, has determined that the proposed quarry and plant will not be visible outside of [Hanson's] property when the proposed bunds and screening vegetation are established. Studies including computer‑generated perspectives of the proposed quarry (Figure 17) have shown that the quarry operations will not be visible at all from the Swan Valley."
Figures 1 and 2 to the PER were, respectively, a large scale aerial photograph and a large scale drawing. Neither of them purported to identify precisely the boundaries of the new quarry. Figure 1 was said to show only the general location of the new quarry. Figure 2 showed distances from a central point in the new quarry. The plan embodied in Figure 1 did not depict any contour lines. Figure 11 to the PER did not show any Australian map grid references, elevation contours or cadastral boundaries.
The Authority's assessment of Hanson's proposal and the Authority's assessment report of April 1991 (Bulletin 510)
The Authority assessed Hanson's proposal, which it described (AB 249) as a "proposal to relocate the existing Herne Hill quarry operation (Figure 1)". In its assessment report dated April 1991 (Bulletin 510), the Authority concluded (AB 260) that the proposal was environmentally acceptable, subject to:
"… the operation being carried out in accordance with the commitments in [Hanson's PER], [Hanson's] additional commitments and the recommendations of the [Authority]."
The Authority said, in the course of its report (AB 252):
"The Authority notes that during the detailed implementation of proposals, it is often necessary or desirable to make minor and non‑substantial changes to the designs and specifications which have been examined as part of the Authority's assessment. The Authority believes that subsequent statutory approvals for this proposal could make provision for such changes, where it can be shown that the changes are not likely to have a significant effect on the environment."
In Appendix 1 to its report, the Authority set out various "specific commitments" which had been made by Hanson in relation to environmental protection and management at Pioneer No 2. Those specific commitments included, in relation to visual impact, Commitment 22 which provided (AB 264):
"The Pioneer No 2 operations will not be visible from ground level outside [Hanson's property] once screening bunds and vegetation are established. Screening vegetation will be established around the Pioneer No 2 infrastructure site and north‑west of the quarry pits to screen the operations from view."
Ministerial Statement 199 dated 4 December 1991 and published under s 45 of the Act
By a written statement dated 4 December 1991 ("Ministerial Statement 199"), published under s 45 of the Act, the Minister approved the implementation of Hanson's proposal, subject to various conditions. The conditions included, relevantly (AB 287):
"1. Proponent commitments
In implementing the proposal [Hanson] shall fulfil the commitments (which are not inconsistent with the conditions or procedures contained in this statement) made in [Hanson's PER] (A copy of the commitments is attached).
2.Detailed implementation
Subject to these conditions, the manner of detailed implementation of the proposal shall conform in substance with that set out in any designs, specifications, plans or other technical material submitted by [Hanson] to the [Authority] with the proposal. Where, in the course of that detailed implementation, [Hanson] seeks to change those designs, specifications, plans or other technical material in any way that the Minister for the Environment determines on the advice of the [Authority], is not substantial, those changes may be effected."
Ministerial Statement 199 merely referred to the proposal as "Relocation of Herne Hill Quarry Operation", and did not describe it in any detail.
Hanson's 1994 application for an extractive industry licence and the west pit extension
In 1994, the Shire of Swan, being the local government with authority in relation to Hanson's property, referred to the Authority an application by Hanson for an extractive industry licence ("EIL"). The application for an EIL included a proposal to extend the west pit at Pioneer No 2. The proposed extension was not part of the proposal to relocate Hanson's quarrying operations which was approved by the Minister in 1991. The Authority considered the application for an EIL and concluded that the overall environmental impact of the proposed extension to the west pit was not so severe as to require environmental assessment.
The Minister's request in February 2004 to the Authority under s 46(1) of the Act: Commitment 22 and the scope and definition of the quarrying operations at Pioneer No 2
On 12 February 2004, the Minister, acting under s 46(1) of the Act, wrote to the Chairman of the Authority in relation to Commitment 22 and the scope and definition of the quarrying operations at Pioneer No 2. In particular, the Minister requested (AB 300):
(a)"… advice from the [Authority] as to whether Commitment 22 can be included as a Ministerial condition and what additional conditions relating to visual impacts should be imposed"; and
(b)"… advice on the scope and definition of the quarry operation".
By s 46(6), the Authority was required to report to the Minister on whether the conditions and commitments referred to in the Minister's letter of 12 February 2004 should be changed. Also, by s 46(6), the Authority was empowered to make any other recommendations which it thought fit.
The Authority's report of November 2004 (Bulletin 1152) under s 46(6) of the Act
In November 2004, the Authority made a written report (Bulletin 1152) to the Minister.
In the introduction to its report, the Authority noted that Hanson's 1994 application for an EIL, which was referred to the Authority by the Shire of Swan, included the proposed extension to the west pit, and that the proposed extension, shown in Figure 2 to the report as Area 6, was not part of the original proposal.
The Authority summarised (AB 300) the then status of the quarrying operations at Pioneer No 2:
"[Pioneer No 2] has been in operation since late 1997.
The quarrying operation involves the extraction of hard rock from the West Pit by blasting and/or excavation by wheeled loader. Quarried rock is then transferred to the onsite crushing and screening plant where it is converted into the various products required in the construction of buildings, roads, railways and other infrastructure.
The approval of this proposal in 1991 included two quarry pits, the West and East Pits. To date [Hanson] has extracted rock from the West Pit only and has not commenced development of the East Pit."
The Authority considered in detail the visual impact of the quarrying operations at Pioneer No 2. On 22 April 2004, representatives of the Authority visited Pioneer No 2, and also the applicant's adjoining property, "Teewana". These visits revealed that the quarrying operations were clearly visible from land outside Hanson's property, including from "Teewana". The Authority said in its report (AB 302):
"The south‑eastern and south‑western faces of the West Pit, the upper parts of the crushing/screening plant and clearing for the West Pit Extension were all visible from several locations on 'Teewana'. These locations include the top of the rise immediately south‑west of the main house on Lot 250, a location of higher elevation further north also on Lot 250 and a location in the southern portion of Lot 147 in the south‑east of 'Teewana'.
The overburden dump is visible from 'Teewana' and on the coastal plain at the intersection of Toodyay Road and Roe Highway. It is likely that at least some of the quarry operation is visible from other privately held land in the surrounding Darling Range or on the coastal plain."
In its report, the Authority noted (AB 304) that neither Ministerial Statement 199 nor Hanson's PER contained any "detailed technical material delineating the location of the approved quarry footprint". The PER did, however, include 10 aerial photographs or maps of the site and surrounds which showed "an outline of the expected location of the various elements of the quarrying operation". The Authority obtained access to survey information relating to the scope and definition of the quarrying operations at Pioneer No 2. In its report, the Authority said (AB 304 ‑ 305):
"The Photogrammetric Survey and Data Analysis Report (Appendix 7), undertaken [by Premier Mapping Australia] on behalf of the adjacent neighbour indicates that the southern edge of the West Pit is located 94m outside the south‑east boundary of the West Pit as shown in the PER. This report also indicates that the highest point of the West Pit's southern wall is at an elevation of 240m, whereas the boundary shown in the PER is at an elevation of 172m - a difference of 68m.
The [Authority] has acquired two maps (Job Number 881 and Job Number 895) from the [Department of Land Information ("DLI")] showing the location of the [Pioneer No 2] Quarry operation and an approximate outline of the approved footprint area, taken from the PER (Appendix 5). Both maps indicate that most of the quarrying operation is approximately within the two areas shown in the PER as the West Pit and the infrastructure area and that the approved east pit was not commenced. Areas delineated for the primary and secondary crushers and the conveyor have not been used. While the Asphalt plant has not been constructed, the area delineated for it has partially been taken up by infrastructure for crushing and screening of quarry products.
The DLI map titled Job Number 895 indicates that, in terms of the horizontal location of the West Pit, the southern wall is approximately 82m outside the approved West Pit boundary. By applying the combined horizontal accuracy range of ±13.25m1, at most the West Pit is 95.25m outside of the approved West Pit boundary.
Job Number 895 also indicates that the vertical elevation of the most southern point of the West Pit (labelled A on Job Number 895) is between 235m Australian Height Datum 1971 (AHD) and 240m AHD. Point A is the highest point of the West Pit which is most visible to the north‑east. At its highest, the south‑eastern boundary of the area approved for the West Pit is located at an elevation between 230m AHD and 235m AHD.
The vertical accuracy of the topographic contours represented in the two DLI maps is ±2.75m. By using this range, the difference in elevation of point A and the south‑eastern boundary of the area approved for the West Pit is, at most, 15.5m. This distance represents the vertical extent of the increase in visibility of the West Pit to the north‑east."
Footnote 1 stated:
"The absolute horizontal accuracy of any given pixel in the January 2004 geospatial aerial photography mosaic is ±4m ground distance. The mean horizontal accuracy of the 1:25000 scale topographic base map is ±6.25m ground distance for the depicted topographic features. The accuracy range of the manual scaling process for depicting the west pit boundary onto Job No 895 and Job No 881 is estimated by DLI to be ±3m. Combined, these three accuracy ranges total to ±13.25m, which is applied to horizontal measurements taken from the maps produced by the DLI."
The Authority's report then assessed whether "Commitment 22 … can be included as a Ministerial condition" (AB 305). The Authority said (AB 305 ‑ 306):
"The [Authority] has determined that the [Pioneer No 2] Quarry operation is visible from outside land owned by [Hanson]. The Visual Impact Assessment, as part of the 1990 PER, was inaccurate in its prediction that the operations would not be visible from ground level outside [Hanson's] property once screening bunds and vegetation were established. At the time of the original assessment, there was no predicted impact on properties to the north‑east.
The [Authority] considers that the then [Authority] (in 1991) accepted [Hanson's] commitment 22 on the understanding that the quarry operation could be screened from view. This understanding originated from the results of the Visual Impact Assessment Plan. However, as the Visual Impact Assessment was inaccurate, the [Authority] considers that other than for land to the north‑west, commitment 22 cannot be complied with. This [is] due to the size of the quarry operation and related infrastructure and the fact that the quarry is located in the upper portions of the Susannah Brook valley. Even if commitment 22 contained a timeframe for the installation of the screening bunds and vegetation, the [Authority] considers that the quarry operation would still be visible from outside land owned by [Hanson].
Accordingly, Commitment 22 should be removed from Ministerial statement 199.
In its decision not to conduct an environmental assessment of [Hanson's] EIL application in 1994, the [Authority] did not recommend that the requirements of Ministerial Statement 199 should apply to the West Pit Extension. When the EIL application was referred in 1994, the [Authority] had the option of assessing the West Pit Extension either as a change to the conditions of approval under section 46 of the Environmental Protection Act 1986 or as a new proposal under section 38. As neither of these options were taken, there are no conditions governing the West Pit Extension under Part IV of the Act. Furthermore, the [Authority] is now unable to assess the West Pit Extension as, under section 38(5j) of the Act, a proposal cannot be referred to the [Authority] more than once.
While the [Authority] is unable to assess the West Pit Extension, an opportunity does exist for the City of Swan, under its EIL, to place conditions on this part of the [Pioneer No 2] Quarry Operation.
The [Authority] expects that the visual impact of the West Pit Extension will increase as [Hanson] continues extraction in this area, which is of higher elevation than the original West Pit and closer to adjacent properties to the north‑east."
Later in its report, the Authority assessed the scope and definition of the quarrying operations at Pioneer No 2. It said (AB 307):
"It is not possible to determine the exact approved location of the West Pit as the information contained in the PER is not sufficiently detailed. The [Authority] considers that for the approved location of the West Pit, the information contained in the PER is indicative only and not a detailed description of the approved location of this pit.
From information contained in the two mapping exercises undertaken in relation to the scope and definition of the quarry operation, the [Authority] considers it is likely that the southern boundary of the West Pit extends outside the approved footprint area by between 68.25m and 95.25m.
The large maximum difference (15.5m compared to 68m) between the two information sources in relation to the elevation of the southern wall of the West Pit, is difficult to explain. The discrepancy in results may be due to any one, or a combination of, assumptions and/or estimations made by each individual operator in determining the locations of the topographic contour lines, the indicative footprint areas and geo‑referencing the aerial photographs used.
The [Authority] notes that the topographic contours depicted in the information from DLI closely follow the topography inferred from viewing the aerial photograph of the area. The contour lines in the DLI information are also very similar to those in Figure 2 of the PER.
The [Authority] is, however, able to determine that the overburden dump was not included in the 1990 PER or the application for an Extractive Industry Licence referred in 1994.
Accordingly, the [Authority] considers that [Hanson] should remove the overburden dump prior to 31 December 2005, or another date if more appropriate, and rehabilitate the disturbed area to native vegetation, as part of the Rehabilitation Plan. The overburden material should be returned to the West Pit void and used in the reshaping and rehabilitation of this area, unless an alternate use is considered and approved as part of the Rehabilitation Plan.
The [Authority] has recommended accordingly."
The Minister's letter dated 21 December 2005; Ministerial Statement 705 dated 21 December 2005 and published under s 46 of the Act
In a letter dated 21 December 2005 from the Minister to the applicant, the Minister set out the background circumstances and summarised the Authority's report of November 2004 (Bulletin 1152). The Minister recorded the substance of the submissions made by, relevantly, the applicant and Hanson in relation to that report, and then set out her understanding of various provisions of the Act.
The Minister noted that the plans relating to Pioneer No 2 which were attached to Bulletin 510 identified a west pit, an east pit, an asphalt plant and other infrastructure areas. The Minister also noted that the current operations at Pioneer No 2 comprised the west pit, the overburden dump, a stockpiling area and new work on the extension to the west pit. The east pit and the asphalt plant had not been developed.
The Minister said, in relation to the west pit (AB 371):
"It appears that the west pit was part of the original proposal and is therefore subject to the conditions applying under Ministerial Statement 199. It follows that it is within the authority conferred on me under s 46 of the [Act] to amend the implementation conditions insofar as they apply to the west pit."
The Minister said, in relation to the overburden dump, relevantly (AB 371 ‑ 372):
" … it appears that an overburden dump or dumps was/were contemplated by the [Authority] in its original assessment in 1990/91. This is reflected, for example, in cl 5.4(2) of Bulletin 510 which specifically refers to the establishment of an overburden stockpile. Commitment 2 of that Bulletin also refers to the fact that topsoil, vegetation and overburden would be stripped from the areas to be developed, and used for the building of bunds and for rehabilitation. Accordingly, I am of the view that some form of overburden dump was part of the 1990 proposal, and as a result, it is open to me to apply conditions relating to the overburden dump under s 46."
The Minister said, in relation to the extension to the west pit (AB 372 ‑ 373):
" … it appears that the extension to the west pit was not part of the original 1990 proposal. This is primarily evidenced by the fact that there is no reference to the extension in either the project description or the map published in Bulletin 510. This point is not disputed by Hanson, which has agreed that the north‑west extension was not assessed in 1990/91. Subject to my comments below in relation to section 45C of the Act, because the extension was not part of the original quarry proposal, the conditions contained in Statement 199 do not, on the face of it, apply to the extension. I therefore see no basis for Hanson's submission that the extension is subject to the general conditions of Statement 199. The extension was not the subject of assessment in 1990, and was not referred to in the [Authority's] Bulletin or the subsequent conditions. As a matter of law, the extension is not therefore subject to those conditions.
The question that follows is whether the extension was the subject of a subsequent referral to the [Authority], thereby precluding a further referral. This issue is not without difficulty, especially given the limited documentation available for the period in question. In the [Authority's] view, the extension was referred to it in February 1994. The [Authority] determined not to assess this proposal, and communicated this to [Hanson] and the Shire of Swan (the referrer). As a consequence of this decision, the [Authority] states that it cannot accept a new referral of the proposal and that the extension is not subject to any environmental conditions under Part IV of the Act.
Having carefully reviewed the information available to me, it appears that the [Authority's] conclusion that the extension of the west pit had been the subject of a referral in 1994 is incorrect. The referral made in 1994 by the Shire of Swan appears to have concerned the renewal of the extractive industry licence at the previous quarry [Pioneer No 1]. This conclusion is supported by the fact that the [Authority's] decision on the referral was communicated to the Shire of Swan by letter dated 11 February 1994, which was approximately two weeks before Hanson lodged a [sic] application with the Shire of Swan for the development of [Pioneer No 2]. It also appears that the primary reason for the [Authority] determining not to assess the proposal was that it was 'already licensed' (see notation on filtering sheet dated 4 February 1994). It appears that this is a reference to a licence issued under Part V of the [Act], and it is noted that at the time, the old quarry in Neuman Road [that is, Pioneer No 1] was subject to such a licence. It is apparent also that the documentation referred by the Shire contained references to the Neuman Road facility [that is, Pioneer No 1], rather than the site on Toodyay Road Red Hill [that is, Pioneer No 2].
Section 45C of the Act provides that approval can be given for an assessed proposal to be changed except where the changes might have a significant detrimental effect on the environment in addition to, or different from, the effect of the original proposal. For the reasons that follow, I am of the view that section 45C provides an effective mechanism by which the environmental impacts of the west pit extension can be subject to legally enforceable conditions.
The extension has arisen from the incremental expansion of quarrying north west of the west pit. It follows that the activities to be undertaken in the extension are of a similar nature to the activities carried out under the auspices of Ministerial Statement 199. I therefore expect environmental issues such as dust, noise and vibration to be of the same general nature as that [sic] which were assessed through the original proposal. Applying the terminology of section 45C, it is my view that the current area of the extension is unlikely to have a significant detrimental effect on the environment in addition to, or different from, the effect of the original proposal in relation to dust, noise and vibration.
As far as visual amenity is concerned, the impact will vary depending upon the location of the excavation, coupled with the availability of rehabilitation measures to screen the operations. As noted above, the [Authority] concluded that the location of the quarry high on the southern side of the Susannah Brook valley means that visual impacts on properties to the north are effectively unavoidable, whether or not the west pit was located on the original footprint. In the [Authority's] view, these impacts were as a result of defects in the original visual impact assessment report.
In relation to the extension to the west pit, the [Authority] stated (at page 8 of the Bulletin):
' … that the visual impact of the West Pit Extension will increase as the proponent continues extraction in this area, which is of higher elevation than the original West Pit and closer to adjacent properties to the north-east.'
It appears from this statement that the development of the west pit extension will increase the visual impact of the quarry over time.
In relation to the current developed area of the west pit extension, I am of the view that the visual impacts do not pose a significant detrimental effect on the environment that is in addition to, or different from, the effect of the original proposal, as the extension is simply a continuation of the impact of the existing operation. In these circumstances, I am prepared to approve a change to the proposal under section 45C that incorporates the current west pit extension, with the result that the conditions applying under Statement 199 apply equally to the extension. I have asked Hanson to immediately prepare plans which precisely define the current areas of the west pit extension, and for this to be submitted to me with a view to the extension being incorporated into the original proposal under section 45C.
In the event Hanson wishes to extend the west pit further than its present extent, it will need to either refer the proposal to the [Authority], or seek approval for such further extension to be subject to the existing conditions."
The Minister set out various determinations based on her discussion of the issues (AB 373 ‑ 374):
"1.The west pit was part of the original proposal and is therefore subject to the existing Ministerial Conditions;
2.An overburden dump was contemplated as part of the original proposal, and the current dump is therefore subject to the Ministerial Conditions; and
3.The current extension to the west pit:
(i)was not a part of the original proposal;
(ii)appears not to have been the subject of a referral to the [Authority] in 1994;
(iii)does not raise environmental issues that are likely to have a significant detrimental effect on the environment in addition to, or different from, the effect of the original proposal and can therefore be incorporated into the original proposal under section 45C of the Act without a fresh referral to the [Authority]; and
(iv)that as a result of the above, I propose to extend the conditions applying to the original proposal to the current west pit extension, subject to Hanson providing me with further documentation defining the current area of the west pit extension."
The Minister then turned her attention to whether the implementation conditions applying to the original proposal should be varied. In particular:
(a)whether Commitment 22 should be removed;
(b)what conditions, if any, should be applied to the overburden dump; and
(c)what other conditions, if any, should be applied to the proposal in relation to visual amenity and other operational aspects of the proposal.
The Minister decided to delete Commitment 22. She said (AB 374):
"It is common ground that the quarry is visible from outside Hanson's property. My visit to your property in December last year confirmed this. Commitment 22 implies (although this is by no means free from ambiguity) that the quarry would not be visible at ground level from outside Hanson's property, however, no time frame was identified to [sic] the achievement of that objective. It also appears from the advice of the [Authority] that the quarry would have been visible irrespective of whether it was implemented on the correct footprint. The [Authority] also indicated that the original definition of the footprint was insufficiently detailed to determine the location of the original footprint with any certainty.
Having considered the information provided to me, I am of the view that commitment 22 is of limited usefulness in addressing the visual impacts of the quarry operations. It does not include a time for compliance, and the reference to the operations not being visible 'from ground level' outside [Hanson's] property raises the question as to whether this is a reference to the impacts at the boundary of the property, or to any place at ground level outside the property.
I believe the visual impacts of the proposal are better addressed through the application of new, more specific conditions, which are discussed in further detail below. It follows that I have determined to delete commitment 22 from the revised Statement."
The Minister determined (AB 375) that rehabilitation work should be carried out in relation to the overburden dump to reduce its visual impact from locations outside Hanson's property.
The Minister decided that cl 4 of the original conditions should be deleted and replaced with a new condition requiring the preparation and implementation of a screening and revegetation program, and a rehabilitation management plan. The Minister added (AB 376):
"…
•[Hanson] will need to address short-term visual impacts of the quarry through the implementation of a screening and revegetation program, with a particular focus on properties to the north of the operation;
•a requirement that the long term rehabilitation of the site includes the planting of screening vegetation, and that this requirement be substantially commenced in the short‑term;
•the plans will need to be prepared to the requirements of the [Authority], and include consultation with affected landowners."
By a written statement dated 21 December 2005, published under s 46 of the Act, the Minister formally changed the implementation conditions, as contemplated in her letter of that date.
The Minister's letter dated 25 January 2006
In a letter dated 25 January 2006 from the Minister to Hanson, the Minister said, relevantly (AB 380):
' … under section 45C, the Minister for the Environment may approve of a proposal being changed without it being referred to the [Authority] provided the change does not have a significant detrimental effect on the environment in addition to, or different from, the effect of the original proposal.
Having considered the revised plan of the west pit, which describes the current extent of the pit, I consider that the changes will not have a significant effect on the environment in the manner contemplated by section 45C. As a result, I approve of the change to the area of the west pit development in terms of the attached figure, in which the area cross‑hatched in red is approved to be developed for quarrying.
As mentioned in my letter to you dated 21 December 2005, should [Hanson] wish to extend the quarry further than the area currently approved, such a proposal should either be referred to the [Authority] for assessment, or approval should be sought for the extension to be subject to the existing conditions."
The grounds of review in relation to the s 45C Decision
The grounds in relation to the attack on the s 45C Decision, without the supporting particulars, are these:
"(A)The [Minister] acted without jurisdiction to authorise changes to the proposal the subject of the 1991 Decision (Original Proposal) in circumstances where the quarrying activities covered by those changes had already been implemented.
…
(B)The section 45C Decision is not authorised by law because the [Minister] failed to give any or alternatively, any proper consideration to the mandatory relevant consideration that the quarrying activities in the Southern Extension with their resultant impact on visual amenity occur at a materially increased height when compared with quarrying activities in the approved footprint area.
…
(C)The section 45C Decision is not authorised by law because the [Minister] failed to apply or properly apply the test required in making the section 45C Decision, alternatively took into account an irrelevant consideration.
…
(D)The section 45C Decision was taken for an ulterior purpose, alternatively taken in reliance on an irrelevant consideration, namely that section 45C of the … Act be used as a mechanism to retrospectively approve quarrying activities which had gone beyond the approved footprint area of the 1991 Decision by:
(a)changing the original proposal to include the said activities; and
(b)making the changed 'proposal' subject to amended conditions pursuant to s 46 of the … Act.
(E)The section 45C Decision is not authorised by law because the [Minister] failed to give the Applicant a fair hearing as the [Minister] was obliged to do.
…
(F)The section 45C Decision is not authorised by law because it is manifestly unreasonable amounting to Wednesbury unreasonableness.
… "
Grounds of review in relation to the s 46 Decision
The grounds in relation to the attack on the s 46 Decision are these:
"(G)The section 46 Decision is void and of no effect because it purports to amend conditions applying to a changed proposal, namely the original proposal changed pursuant to the section 45C Decision, whereas the latter decision is void on the grounds set out above, so that there is no changed proposal.
(H)Further to paragraph D above, the section 46 Decision was taken for an ulterior purpose, alternatively taken in reliance on an irrelevant consideration, namely that section 46 of the … Act be used as a mechanism by which quarrying activities which went beyond the approved footprint area of the 1991 Decision retrospectively be made subject to amended conditions."
The precise nature, sequence and description of the Minister's decisions
The Minister's decisions comprised, relevantly:
(a)a decision made on or about 21 December 2005 under s 46 of the Act to amend the conditions to which the implementation of Hanson's original proposal was subject; and
(b)a decision made on or about 25 January 2006 under s 45C of the Act to approve of Hanson changing the original proposal without a revised proposal being referred to the Authority.
The Minister's letter dated 21 December 2005 anticipated that the Minister would be prepared to approve of Hanson changing the original proposal without a revised proposal being referred to the Authority. In particular, in that letter:
(a)The Minister said (AB 366) that she would refer to the relevant background, the Authority's report under s 46(6) and submissions from Hanson and others "before concluding with consideration of whether the conditions applying to the proposal should be amended".
(b)Later, the Minister said (AB 373):
"In these circumstances, I am prepared to approve a change to the proposal under s 45C that incorporates the current west pit extension, with the result that the conditions applying under [Ministerial] Statement 199 apply equally to the extension. I have asked Hanson to immediately prepare plans which precisely define the current area of the west pit extension, and for this to be submitted to me with a view to the extension being incorporated into the original proposal under section 45C."
(c)After having decided to amend the implementation conditions, the Minister said, in conclusion (AB 376):
"I have attached the amendments to the Statement of Conditions. These Conditions will extend to the west pit extension subject to my consideration of additional plans being prepared by Hanson."
In my opinion, although the Minister indicated her intention to approve a change to the original proposal under s 45C, she did not on or about 21 December 2005, or in the letter dated 21 December 2005, grant that approval.
The relevant decision recorded in the letter dated 21 December 2005 was to amend the conditions to which the implementation of Hanson's original proposal was subject.
The decision to approve of Hanson changing the original proposal, without a revised proposal being referred to the Authority, was made on or about 25 January 2006, and recorded in the letter dated 25 January 2006 from the Minister to Hanson. In that letter, the Minister said, relevantly (AB 380):
"Having considered the revised plan of the west pit, which describes the current extent of the pit, I consider that the changes will not have a significant effect on the environment in the manner contemplated by s 45C. As a result, I approve of the change to the area of the west pit development in terms of the attached figure, in which the area cross‑hatched in red is approved to be developed for quarrying."
Accordingly, it was not until on or about 25 January 2006 that, pursuant to s 45B, the implementation conditions applied to the original proposal as changed.
The nature and scope of a "proposal" under the Act
As I have mentioned, the term "proposal" is defined, in s 3(1) of the Act, to mean, relevantly:
"a project, plan, programme, policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing …"
A "proposal", as defined, has a very broad connotation. For example, an application for subdivision is a proposal. See Greendene Development Corporation Pty Ltd v Environmental Protection Authority (2003) 28 WAR 107 per Steytler J (as his Honour then was) at 115 [31]. Also, the definition states that an "amendment" of a project, plan or programme etc is itself a "proposal".
A proposal is not defined by reference to the impact which it may have on the environment. The definition of "proposal" is, in this respect, to be compared to and contrasted with the definition of "significant proposal". As I have mentioned, by s 37B(1), in Div 1 of Pt IV "significant proposal" means "a proposal likely, if implemented, to have a significant effect on the environment".
Neither the Act nor any other statutory provision contains a bare prohibition (with or without exceptions) against a proponent implementing a significant proposal unless it has been referred to the Authority. See the provisions of s 38 to s 41 of the Act which I have summarised at [44] ‑ [46] above.
However, Pt V creates various offences including, for example, where a person, intentionally or with criminal negligence, causes "serious environmental harm" or "material environmental harm" (each as defined in s 3(1) of the Act), subject to any available defence, including the defence conferred by s 74A(a). Section 74A(a) provides:
"It is a defence to proceedings under this Part for causing pollution, in respect of an emission, or for causing serious environmental harm or material environmental harm, if the person charged with that offence proves that the pollution, emission or environmental harm occurred -
(a)in the implementation of a proposal in accordance with an implementation agreement or decision;
… "
Also, permits, approvals or licences must be obtained for various activities described in Div 2 and Div 3 of Pt V including, for example, a permit to clear native vegetation.
A PER is part of the assessment of a proposal and is not itself the proposal or part of the proposal.
Where implementation conditions are imposed, the conditions regulate the implementation of the proposal but do not themselves form part of the content of the proposal. Although the implementation conditions do not define the content of the proposal, they will be relevant to, and should ameliorate, the detrimental impact on the environment which the unconditioned implementation of the proposal would cause.
It will often be necessary, in a particular case, to determine the content of a proposal. For example:
(a)It may be necessary to decide whether a proposal has been referred to the Authority and, if so, the precise project, plan or programme etc that has been referred. By s 38(5j), subject to s 46B(2), a proposal cannot be referred to the Authority under s 38 more than once, unless assessment of it has been terminated under s 40A.
(b)If a proponent seeks the Minister's approval under s 45C(1) to a change to a proposal, without a revised proposal being referred to the Authority under Pt IV, it will be necessary for the change to be characterised as a revision of a proposal which has previously been referred and authorised.
(c)If a proponent implements a proposal which has been referred and authorised and made the subject of implementation conditions, the proponent commits an offence if it does not ensure that the implementation is carried out in accordance with the conditions: s 47(1). If the proponent were to undertake a new proposal (that is, a proposal which was not part of or a revision to the original proposal), the proponent would not commit an offence if the new proposal was not referred or required to be referred and was not carried out in accordance with the implementation conditions applicable to the original proposal.
In my opinion, the Act operates in relation to a proposal until it has been fully implemented. In other words, a proposal will not cease to be a "proposal", as defined in s 3(1), while, relevantly, the project, plan or programme etc in question has not been carried into effect completely. See Greendene, where Steytler J said, at 118 ‑ 119 [42] ‑ [43]:
"That it was not the intention of the legislature, and that the legislature contemplated that the Act would continue to operate until such time as a proposal had been fully implemented, seems to me to be supported by the terms of s 46(1) of the Act which, as I have said, empowers the Minister, if he considers that any conditions or procedures agreed or decided upon under s 45 should be changed, to request the [Authority] to inquire into and report to him on the question whether there should be any such change. That section appears to me to be intended to operate even during the implementation phase of a proposal and after approvals have already been given, even though there is no provision in the Act expressly requiring that the implementation should cease, or relevantly cease, pending the production of that report and the making of any decisions as a consequence of it. I have also mentioned that s 46(6) provides that, notwithstanding anything in s 46, a proposed change to any conditions or procedures agreed or decided upon under s 45 shall, if the Minister and any decision-making authority consulted by him under that section agree that that change is a major change, be deemed to be a new proposal and shall be referred by that decision-making authority to the [Authority] under s 38(1). There is nothing in that section, or elsewhere in the Act, to suggest that the change is one which might only be made before all decision‑making authorities have played their part.
Similarly, it seems to me that ss 47 and 48 of the Act are intended to continue to have effect during the implementation of proposals, and that a 'proposal' will continue to be such for the purposes of the Act, regardless of whether or not all necessary decisions have been made by 'decision-making authorities'. As will already be apparent, s 47 makes it an offence for a proponent not to ensure that 'any implementation of the proposal' dealt with in a statement served under s 45(5) is carried out in accordance with any conditions and procedures set out in the statement and gives to the Chief Executive Officer power to require the proponent to give him such reports and information 'in respect of the implementation of the relevant proposal' and of any conditions and procedures set out in the statement as the Chief Executive Officer thinks fit. I have said that s 48 provides for the monitoring of 'the implementation of any proposal'."
This construction of the Act is consistent with the language of the definition of "proposal", which does not suggest that the concept is confined to future or wholly unimplemented proposals. Also, it gives effect to the apparent purpose of the legislation, namely, protection of the environment, as reflected in the long title, the object and principles set out in s 4A, and the objectives of the Authority recorded in s 15. See [40] above. The actual or potential impact of a project, plan or programme etc on the environment may not be appreciated, adequately or at all, before the commencement of the implementation of the project, plan or programme etc. The rationale for the Authority assessing a proposal, and for the requirement that the assessed proposal be authorised and made subject, if appropriate, to implementation conditions, is to regulate the future conduct of the proposal in accordance with any such conditions which, under s 47(1), become statutory obligations of the proponent.
My conclusion that the Act operates in relation to a proposal until it has been fully implemented (that is, a proposal will not cease to be a "proposal", as defined in s 3(1), while, relevantly, the project, plan or programme etc in question has not been carried into effect completely), and the reasoning which supports that conclusion, apply also to a "change" to an original proposal, within s 45C.
The term "revised proposal" appears in s 41A(2), s 43A, s 45B, s 45C(1) and s 46B(1). It is not defined in the Act. In s 41A(2) and s 46B(1), the term "further proposal" is used as a synonym of "revised proposal".
A "revised proposal" is an amalgam of the original proposal as changed. A proposed change and the original proposal will not, in combination, constitute a revised proposal if the change is unrelated to or unconnected with the subject matter of the original proposal. Questions of degree will undoubtedly arise. An alleged change may be so separate or distinct from the original proposal that it is properly to be characterised as a new proposal which must be assessed and authorised from the beginning.
As I have mentioned, the Minister found that the "southern extension" to the west pit formed part of Hanson's original proposal, and it was reasonably open to the Minister to make that finding. It is undisputed that the west pit extension was not part of the original proposal.
By s 45C(2), the Minister was required, relevantly, to make an evaluation of the effect which Hanson's original proposal, as implemented in fact, has had or will have on the environment. That evaluation is not concerned with the effect which the original proposal would have had on the environment if it had been implemented strictly (or even substantially) in accordance with the original proposal as authorised (including in accordance with the original implementation conditions). See [116] ‑ [118] above.
The assessment of Hanson's original proposal predicted that the quarrying operations at Pioneer No 2 would not be visible from outside its property. Commitment 22, which was included in Ministerial Statement 199, stated that the Pioneer No 2 operations will not be visible from ground level outside Hanson's property upon screening bunds and vegetation being established. The predicted visual impact of the quarrying operations was erroneous, and the assessment of the proposal was, in that respect, deficient.
It is apparent that the Minister, in making the s 45C Decision, had regard to the detrimental effect which Hanson's original proposal, as implemented in fact, has had or will have on the environment. The detrimental effect in question was, relevantly, that the quarrying operations at Pioneer No 2 could be seen from various points outside Hanson's property, including at various points on the applicant's property. The Minister compared the detrimental effect of the original proposal, as implemented in fact, with the detrimental effect which the proposed change might have on the environment, and found, relevantly, that the proposed change would not have a significant detrimental effect on the environment (in particular, in relation to its visual impact) in addition to, or different from, the effect of the original proposal, as implemented in fact. The Minister properly applied the test prescribed by s 45C.
In the letter dated 21 December 2005, the Minister noted the deficiencies in the assessment of Hanson's original proposal. The Minister referred to those deficiencies in the context of explaining why it was that the quarrying operations could be seen from various points outside Hanson's property. The Minister did not, however, take those deficiencies into account in determining whether to approve the proposed change under s 45C(1).
The rationale for the s 45C Decision is apparent from the letters dated 21 December 2005 and 25 January 2006. In the letter dated 21 December 2005, the Minister said (AB 373):
"In relation to the current developed area of the west pit extension, I am of the view that the visual impacts do not pose a significant detrimental effect on the environment that is in addition to, or different from, the effect of the original proposal, as the extension is simply a continuation of the impact of the existing operation. In the circumstances, I am prepared to approve a change to the proposal under section 45C that incorporates the current west pit extension, with the result that the conditions applying under Statement 199 apply equally to the extension. I have asked Hanson to immediately prepare plans which precisely define the current area of the west pit extension, and for this to be submitted to me with a view to the extension being incorporated into the original proposal under section 45C."
In the letter dated 25 January 2006, the Minister said (AB 380):
"Having considered the revised plan of the west pit, which describes the current extent of the pit, I consider that the changes will not have a significant effect on the environment in the manner contemplated by section 45C. As a result, I approve of the change to the area of the west pit development in terms of the attached figure, in which the area cross‑hatched in red is approved to be developed for quarrying."
Ground C fails.
Ground D: ulterior purpose in approving retrospectively the quarrying operations
The applicant alleges that the s 45C Decision was taken for an ulterior purpose, alternatively taken in reliance on an irrelevant consideration, namely, that s 45C of the Act should be used as a mechanism to approve retrospectively quarrying activities at Pioneer No 2 which had exceeded the "approved footprint area" of the 1991 Decision, by:
(a)changing the original proposal to include those operations; and
(b)making the changed proposal subject to amended implementation conditions pursuant to s 46 of the Act.
A decision‑maker must exercise a statutory power for the purpose for which it was granted, and not for what is in law an ulterior purpose. A decision made in exercise of a statutory power may be invalid even though its ulterior purpose is not the sole purpose. If the ulterior purpose is a substantial purpose (in the sense that no attempt would have been made to exercise the statutory power if it had not been desired to achieve the unauthorised purpose), the decision is invalid. See Thompson v Randwick Corporation (1950) 81 CLR 87 at 106; Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 at 679; Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at 55 ‑ 56 [58].
As I have mentioned:
(a)the Minister found, and it was reasonably open to her to find, that the "southern extension" of the west pit formed part of Hanson's original proposal; and
(b)the plans depicting the five sided polygon representing the west pit and the polygon representing the east pit, to which the applicant refers as the "approved footprint area" of the 1991 Decision, were indicative only.
The s 45C Decision had three effects. First, it precisely defined the boundaries of the west pit by reference to particular northern and eastern coordinates which appear on the plan referred to in the Minister's letter dated 25 January 2006 (AB 380 ‑ 381). Secondly, it removed from the original proposal the polygon that represented the east pit which, as I have mentioned, had not been quarried. Thirdly, it extended the area authorised for quarrying to include the west pit extension.
In any event, there is no direct evidence that the Minister had the alleged ulterior purpose. Further, the evidence before this Court does not warrant an inference that the Minister had any such purpose.
However, even if the Minister acted with the alleged ulterior purpose of approving "retrospectively" the quarrying operations which had exceeded the "approved footprint area" of the 1991 Decision, the approval of the change to the original proposal was wholly ineffective to achieve that purpose. The decision in question had effect only on and from the date of approval. See [124] ‑ [126] above.
The Minister concluded that the west pit extension was not part of the original proposal, and rejected the Authority's view that the west pit extension had been referred to the Authority under s 38. The non‑referral of the west pit extension was not in itself an offence against the Act. See [95] above.
The west pit extension was not subject to the original implementation conditions or any other conditions under Pt IV of the Act. The Minister noted (AB 373) that s 45C provided "an effective mechanism by which the environmental impacts of the west pit extension can be subject to legally enforceable conditions", and that if the change to the original proposal were to be approved then the implementation conditions (as amended) would apply to the west pit extension. The Minister stated (AB 374) that she proposed to "extend the conditions applying to the original proposal to the west pit extension". Accordingly, a purpose for which the Minister acted was to ensure that Hanson would, from the date of the approval under s 45C(1), be obliged to comply with the implementation conditions (as amended) in its quarrying of the west pit extension. The s 45C Decision gave effect to that purpose by imposing on Hanson an obligation under s 47(1) which did not previously exist. The Minister's purpose was proper.
Ground D fails.
Ground E: procedural fairness
The applicant argues that the visual amenity enjoyed from his property is being adversely affected by Hanson's operations, in particular, the operations in the "southern extension" and the west pit extension. He contended that the s 45C Decision affected his "rights, interests and legitimate expectations". It was submitted, on behalf of the applicant, that he was not informed, before the s 45C Decision was made, that the Minister was contemplating making the decision and was not given any opportunity to comment. It was also submitted that the applicant had "a right to be involved in this process", and should have been given an opportunity to comment on the course of action which the Minister proposed to adopt and on any submissions made by Hanson to the Minister in relation to her proposed decision.
Absent a clear legislative intention to the contrary, a statutory power must be exercised with procedural fairness to parties whose interests might be adversely affected by its exercise. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 27 ‑ 28 [81] - [83].
Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Ex parte Lam, per Gleeson CJ at 13 ‑ 14 [37].
The application of the law relating to procedural fairness in connection with decision-makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision-making. Rules developed in the context of judicial decision-making cannot be applied automatically to administrative decision-making. See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343 - 344 [4]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, per Gleeson CJ and Gummow J at 538 [99] - [100], per Hayne J at 561 - 566 [177] - [192]; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 460 [70].
In Kioa v West (1985) 159 CLR 550, there was a denial of procedural fairness because the decision in question was made upon information obtained by the decision-maker from another source, without giving the applicant an opportunity to respond to that information. Mason J said, at 582 - 583:
"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council [(1976) 136 CLR 106 at 109]; Salemi [No 2] [Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 419]; Ratu [R v MacKellar; Ex parte Ratu (1977) 137 CLR 461 at 476]; Heatley v Tasmanian Racing and Gaming Commission [(1977) 137 CLR 487 at 498–499]; FAI Insurances Ltd v Winneke [(1982) 151 CLR 342 at 360, 376–377]; Annamunthodo v Oilfields Workers' Trade Union [[1961] AC 945]. …
The reference to 'legitimate expectation' makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi [No 2] [at 404] Barwick CJ expressed the view that the expression 'legitimate expectation' adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of 'legitimate expectation' extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley [at 508–509]; FAI [at 348, 351–352, 369, 412]; Attorney-General (Hong Kong) v Ng Yuen Shiu [[1983] 2 AC 629 at 636]. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. … Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI … or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v Minister for Civil Service [[1985] 1 AC 374 at 401]. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case."
In Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, Deane J said, at 651 - 652:
"The notion of a 'legitimate expectation' which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country (see, eg, FAI Insurances Ltd v Winneke [(1982) 151 CLR 342, at 348, 351, 361 - 362, 369, 376, 390 - 391, but cf at 412]). The notion is not, however, without its difficulty. For one thing, the word 'legitimate' is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied (see, eg, Salemi v MacKellar[No 2] [(1977) 137 CLR 396, at 452]; Kioa v West [(1985) 159 CLR 550, at 563]). In that regard, there is much to be said for preferring the phrase 'reasonable expectation' which has often been used in judgments in this Court. For another thing, the vagueness of the phrase 'legitimate expectation', which enables it to be used as a convenient label for a broad category of circumstances which will give rise to a prima facie obligation to accord procedural fairness, may convey an impression of comprehensiveness with the result that the absence of an identified legitimate expectation is wrongly seen as a legal mandate for disregarding procedural fairness in any case where no legal right in the strict sense is involved. Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to 'the particular statutory framework' (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [(1963) 113 CLR 475, at 504]), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just."
The concept of "legitimate expectation" referred to by Mason J in Kioa and Deane J in Haoucher (and in numerous other authorities) was considered in Ex parte Lam.McHugh, Gummow, Hayne and Callinan JJ held that "legitimate expectation" has limited utility and scope in consequence of it now being accepted that, absent a clear legislative intention to the contrary, a decision‑maker must comply with the rules of procedural fairness. McHugh and Gummow JJ, in their joint judgment, at 27 [81], referred with approval to the dissenting judgment of McHugh J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 311 - 312, and the judgment of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 39. In Quin, Brennan J said:
"So long as the notion of legitimate expectation is seen merely as indicating 'the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded' to accord procedural fairness to an applicant for the exercise of an administrative power (see per Mahoney JA in Macrae [(1987) 9 NSWLR 268 at 285]), the notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play. If it were otherwise, the notion would become a stalking horse for excesses of judicial power."
Also see, in Ex parte Lam, the judgment of Hayne J at 37 ‑ 39 [120] ‑ [122], and the judgment of Callinan J at 45 - 48 [140] - [148].
Section 45C of the Act is concerned with a change or changes to an original proposal that might have a significant detrimental effect on the environment in addition to, or different from, the effect of the original proposal.
The definition of "environment", and those provisions of the Act which are concerned with whether a proposal is likely, if implemented, to have a significant effect on the environment, or with whether a change to an original proposal might, if implemented, have a detrimental effect on the environment, do not focus upon the effect of the proposal or the change to the original proposal on individual persons.
Part IV does, however, make provision for some public participation in relation to the referral and assessment of proposals and their implementation.
If a proposal is referred to the Authority pursuant to s 38, and the Authority assesses the proposal, the Authority may, for that purpose, with the approval of the Minister and subject to s 42, conduct a public inquiry: s 40(2)(c). Subject to any direction which the Minister may make under s 43 and subject to s 40(5), the Authority may, relevantly, require a proponent's report to the Authority on an environmental review undertaken by the proponent, and any other information provided to the Authority on the proposal in question, to be made available for public review: s 40(4).
If the Authority makes a proponent's report or any other information available for public review, the Authority must determine the period within which, the extent to which, and the manner in which public authorities or persons may make submissions to the Authority in respect of that report or other information: s 40(4).
By s 42(2), if the Authority conducts a public inquiry under s 40(2)(c), the Authority must incorporate the findings made on the public inquiry in the assessment report which it prepares for the Minister under s 44.
Section 43 empowers the Minister, relevantly, to direct the Authority to assess or re‑assess a proposal more fully or more publicly or both, as the case requires, in accordance with the direction, and the Authority must comply with that direction.
When the Minister receives an assessment report from the Authority, he or she is obliged, relevantly, to publish the report and, if the proposal to which the report relates was referred to the Authority by the proponent or another person, to give a copy of the report to the proponent or the other person: s 44(3).
Section 45, which sets out the procedure for deciding on whether a proposal should be implemented, after the Minister has received an assessment report from the Authority, does not provide for or contemplate any participation by any members of the public (including individual persons who may be adversely affected by the implementation of the proposal or any person who has referred the proposal to the Authority) in that procedure or the decision‑making process.
If the Minister makes a request under s 46(1) that the Authority inquire into and report on whether the implementation conditions relating to a proposal, or any of them, should be changed, the Authority's report to the Minister must be published. After the report is published, the Minister must deal with the question of whether or not the implementation conditions to which the report relates, or any of them, should be changed as if that question were the question of to what conditions and procedures, if any, the implementation of a proposal should be subjected, and the procedure and the decision‑making process under s 45 applies to the first‑mentioned question accordingly: s 46(8).
The concept of a "proposal", as defined in s 3(1), is exceedingly variable. It includes operations, undertakings or developments which differ significantly in their scope, duration and complexity, including the extent to which they are likely adversely to affect the environment. The environmental impact of some proposals will be direct and specific, while others will be indirect and general. Some proposals will be likely to impact upon a particular individual or individuals, while others will affect the public at large or a class of the public.
In my opinion, the provisions of Pt IV evince a clear legislative intention that the Minister is not obliged to exercise the power of approval under s 45C with procedural fairness to persons, other than the proponent, whose interests might be adversely affected by its exercise. I am of that opinion for these reasons. First, Pt IV makes provision for some public participation in relation to the referral and assessment of proposals and their implementation, but does not provide for or contemplate any participation by any members of the public in the procedure or decision‑making process under s 45, s 45C or s 46. Secondly, persons who may be relevantly affected by the exercise of the power under s 45C are, potentially, numerous and difficult to identify. Thirdly, the power under s 45C is only exercisable if the change or changes to the assessed and approved proposal are minor and will not cause a significantly different detrimental environmental impact.
Ground E fails.
Ground F: unreasonable decision
The applicant argues that the s 45C Decision was manifestly unreasonable. The applicant's argument relied on the "cumulative effect" of various complaints made in the context of some of the earlier grounds. In his particulars to Ground F, the applicant contended:
"(a)[The Minister] purports to authorise retrospectively by the section s 45C Decision aspects of [Hanson's] operation that were not authorised by the 1991 Decision.
(b)Those aspects of [Hanson's] operations that were not authorised by the 1991 Decision and that were implemented were in breach of the implementation conditions set in accordance with section 45(5) of the [Act].
(c)In terms of the section 45C Decision, [the Minister] regarded as a 'proposal' or part of a 'proposal', quarrying activities that had already been implemented.
(d)Further, in making the section 45C Decision, [the Minister] was required to form the opinion that changes to the proposal in question might not have a significant detrimental effect on the environment in addition to, or different from, the effect of the proposal the subject of the 1991 Decision.
(e)The proposal the subject of the 1991 Decision was approved by [the Minister] on the condition that the quarrying operation not be visible from ground level outside [Hanson's] property once screening bunds and vegetation are established (Commitment 22 of the 1991 Decision).
(f)[The Minister] reached the section 45C Decision on the basis that the development of [Pioneer No 2], by means of the changes to the original proposal, will increase the visual impact over time …
(g)The Applicant here repeats particulars [(e) and (f) of Ground B above].
(h)No decision‑maker acting reasonably, could have formed the opinion that the increase in the impact on visual amenity by reason of the quarrying activities in the West Pit Extension and the Southern Extension might not constitute a significant detrimental effect on the environment in addition to, or different from, the effect of the proposal the subject of the 1991 Decision."
Particulars (e) and (f) of Ground B state:
"(e)Based on the figure of 94m referred to in sub‑paragraph [(c)], Premier Mapping concluded that this encroachment over the southern boundary of the West Pit, that is in the Southern Extension, resulted in quarrying activities up to an elevation of some 240 meters [sic] compared to an elevation of some 172 meters [sic] on the southern side of the bounds of the foot print area, producing a height difference of some 68m (page 3 of the Survey Report).
(f)The [Authority] in its Bulletin 1152 referred to the vertical extent of the increase in visibility of the quarrying activities in the Southern Extension and put this, with reference to maps produced by the Department of Land Information, to be, at most, 15.5m (at page 7 of Bulletin 1152)."
The applicant relies on "Wednesbury unreasonableness" in relation to ground F and does not challenge the s 45C Decision for "irrationality or illogicality". See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165. It is true, no doubt, that in one sense, "unreasonableness" will often overlap with "irrationality" or "illogicality". See Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004), at 339; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 584 [559]. It is unnecessary, in these proceedings, to consider irrationality and illogicality as an independent ground of judicial review or the extent to which that ground is different from Wednesbury unreasonableness. In the present case, the applicant relies upon Wednesbury unreasonableness to attack the Minister's exercise of the discretionary power conferred by s 45C. He challenges a discretionary decision, and not fact‑finding or a conclusion which is mandated by statute.
In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, the question at issue was whether the imposition of a condition imposed by a licensing authority was so unreasonable as to be beyond the proper exercise of the Authority's powers. Lord Greene MR noted, at 230, that the courts can interfere if the decision of a statutory authority on a competent matter is so unreasonable that no reasonable authority could ever have come to it, but to prove a case of that kind requires "something overwhelming". His Lordship emphasised that unreasonableness, in this context, is not what the court considers unreasonable. The decision in question must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to.
In Peko‑Wallsend, Mason J noted, at 42, that when the ground of asserted unreasonableness relied upon by an applicant is giving too much or too little weight to one consideration or another "a court should proceed with caution … lest it exceed its supervisory role by reviewing the decision on its merits". Also see Eshetu per Gleeson CJ and McHugh J at 627 [44].
Accordingly, a decision will not be unreasonable in the Wednesbury sense merely because a court disagrees strongly with the decision‑maker's process of reasoning in relation to an issue of fact. Further, a decision will not be unreasonable in the Wednesbury sense merely because the decision‑maker has given inadequate weight to certain matters and excessive weight to others. As Lord Brightman observed in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518:
"Where the existence or non‑existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision‑making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
In the present case, the applicant's contentions in relation to Ground F rely on several matters which I have found, in the context of previous grounds, are misconceived. In particular:
(a)The Minister did not purport to authorise anything retrospectively (particular (a) to Ground F).
(b)The original proposal had not already been fully implemented (particular (c) to Ground F).
(c)The content of the original proposal was not defined by its predicted visual impact (particulars (d) ‑ (e) to Ground F).
(d)It was reasonably open to the Minister to find that the "southern extension" of the west pit was not outside the scope of the original proposal (particular (g) of Ground F, as corrected by par 54 of the applicant's written submissions).
(e)It was reasonably open to the Minister to conclude that there would be no substantial difference between the visual impact of the original proposal, as implemented, and the changed proposal (particular (h) to Ground F).
As to particular (b) of Ground F, even if Hanson breached the implementation conditions of the original proposal, that breach did not prevent the Minister from approving of a change to the original proposal. Section 48(4)(e) of the Act provides that the Minister, on receiving a report from the Chief Executive Officer of the Department through which the Act is administered, or a decision‑making authority, to the effect that any of the implementation conditions of a proposal is not being complied with, may "if he considers that the relevant condition … should be changed, make a request under section 46(1)" to inquire into and report on whether the implementation conditions should be changed. The Minister is therefore empowered to change implementation conditions in response to a report that those conditions have been breached. A past breach of implementation conditions relating to a proposal does not prevent the Minister from approving of a change to the proposal itself.
As to particular (f) of Ground F, although the Minister said in her letter dated 21 December 2005 that it appeared "the development of the west pit extension will increase the visual impact of [Pioneer No 2] over time" (AB 373), the Minister concluded that the west pit extension "is simply a continuation of the impact of the existing operation" (AB 373). The Minister's evaluation of this point does not, either alone or in conjunction with the other points relied on by the applicant, indicate that the s 45C Decision was manifestly unreasonable in the Wednesbury sense.
The Minister did not reach a decision so unreasonable "that it might almost be described as being done in bad faith" or "so absurd that no sensible person could ever dream that it lay within the powers of [the Minister]": Wednesbury at 229. Also see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 221 [30].
Ground F fails.
Ground G: s 46 Decision made in relation to a changed proposal
The applicant argues that the s 46 Decision is void and of no effect in that it purports to amend implementation conditions which apply to a changed proposal, namely, the original proposal which was changed pursuant to the s 45C Decision, whereas the s 45C Decision is void on the grounds previously relied on by the applicant, and as a result there is no changed proposal.
The Minister's decision made on or about 21 December 2005 amended the implementation conditions applicable to the original proposal, and did not approve a change to that proposal. The Minister recognised that the amended implementation conditions would apply to the changed proposal upon the change being approved under s 45C of the Act. The amendment to the implementation conditions took effect, however, before the change to the original proposal was approved. See [87] ‑ [92] above.
Ground G fails.
Ground H: s 46 Decision and ulterior purpose
The applicant argues that the s 46 Decision was made for an ulterior purpose, alternatively it was made in reliance on an irrelevant consideration, namely, that s 46 of the Act should be used as a mechanism by which quarrying activities which went beyond the "approved footprint area" of the 1991 Decision should be made retrospectively subject to the amended conditions.
The applicable legal principles relating to ulterior purpose are set out at [173] above.
Ground H is without merit, for these reasons:
(a)There is no direct evidence that the Minister had the alleged ulterior purpose. Further, the evidence before this Court does not warrant an inference that the Minister had any such purpose.
(b)The Minister's approval to the amendment of the implementation conditions applying to Hanson's original proposal did not have retrospective effect. See [124] ‑ [126] above.
(c)The Minister's approval of the amendment of the implementation conditions did not purport to, and could not, control the implementation of any other thing than the original proposal. The amended implementation conditions did not apply to the west pit extension until the Minister approved the change to the original proposal which incorporated that extension.
Ground H fails.
Conclusion
None of the applicant's grounds of review has been made out. The order nisi should be discharged.
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