JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ROE -v- THE DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION FOR THE STATE OF WESTERN AUSTRALIA [2011] WASCA 57
CORAM: MARTIN CJ
BUSS JA
MURPHY JA
HEARD: 31 JANUARY 2011
DELIVERED : 15 MARCH 2011
FILE NO/S: CIV 2658 of 2010
BETWEEN: JOSEPH ROE
Plaintiff
AND
THE DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION FOR THE STATE OF WESTERN AUSTRALIA
First RespondentWOODSIDE ENERGY LTD
Second RespondentMINISTER FOR ENVIRONMENT
Third Respondent
Catchwords:
Environment and planning - Environmental impact assessment and approval generally
State and Commonwealth governments agreed to assess the impacts of a plan to designate land as a liquefied natural gas processing plant - Plan referred to Environmental Protection Authority by State for assessment - Authority determined to assess as a 'strategic proposal' - Delegate of first respondent then granted second respondent a clearing permit regarding land near proposed precinct site - Appeal by applicant to third respondent unsuccessful - Applicant challenged grant and decision to dismiss appeal on basis that proposal a 'significant proposal' and not a 'strategic proposal' and that grant of clearing permit prohibited under s 51F of the Environmental Protection Act 1986 (WA)
Whether proposal solely or partly a 'significant proposal' - Whether clearing permit 'related to' proposal
Legislation:
Approvals and Related Reforms (No 1) (Environment) Act 2010 (WA)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Protection Act 1986 (WA)
Environmental Protection Amendment Act 2003 (WA)
Result:
Application dismissed
Category: A
Representation:
Counsel:
Plaintiff: Mr M D Howard SC & Mr H H Jackson
First Respondent : Mr R M Mitchell SC & Mr C S Bydder
Second Respondent : Mr P C S Van Hattem SC & Mr D Dragovic
Third Respondent : Mr R M Mitchell SC & Mr C S Bydder
Solicitors:
Plaintiff: Environmental Defender's Office (WA) Inc
First Respondent : State Solicitor for Western Australia
Second Respondent : Freehills
Third Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136
Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310
Greendene Development Corporation Pty Ltd v Environmental Protection Authority [2003] WASCA 242; (2003) 28 WAR 107
Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366
Re Minister for Environment; Ex parte Elwood [2007] WASCA 137; (2007) 154 LGERA 366
Woodside Energy Ltd v Commissioner of Taxation (No 2) [2007] FCA 1961; (2007) 69 ATR 465
Workers Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642
Table of Contents
MARTIN CJ:............................................................................................................................ 5
Summary
Chapple's case
The EP Act
Section 37B
Significant proposal
Strategic proposal
Section 39B
Section 38 - referrals
Section 39A - decision as to assessment
Assessment
The precise identification of a referred proposal
Clearing of native vegetation
The Northern Development Taskforce
The Commonwealth‑State agreement
The referral to the EPA
The EPA's assessment
Was the referred proposal a strategic proposal?
The selection of James Price Point
Prospective proponents
The scoping document
The master plan
Woodside's position
The Woodside clearing permit
The scope of s 51F
BUSS JA:................................................................................................................................. 31
The critical issue in the proceedings
The material provisions of the Act
The nature of a 'proposal' and the distinction between a 'significant proposal' and a 'strategic proposal'
The referral to the Authority of proposals
Was the Proposal solely or partly a significant proposal or did it comprise, relevantly, a strategic proposal?
Conclusion
MURPHY JA:.......................................................................................................................... 49
MARTIN CJ:
Summary
Significant reserves of natural gas have been discovered in the Browse Basin, which is an area situated off the coast of the Kimberley region of Western Australia. A number of different companies and groups have the potential right to exploit those gas resources.
On 6 February 2008, ministers of the State and Commonwealth governments entered into an agreement for the purpose of undertaking an assessment, under the environmental legislation of the State and of the Commonwealth, of the plan to designate an area of land, potentially but not necessarily, within the Kimberley region as a precinct within which liquefied natural gas processing infrastructure and associated facilities might be established for use by a number of different groups or entities engaged in the extraction of natural gas from the Browse Basin.
By letter dated 25 March 2008, the then Minister for State Development of Western Australia, the Hon Eric Ripper MLA, referred the plan for a multi‑user hub to service development of Browse Basin gas to the Environmental Protection Authority of Western Australia (the EPA). The EPA determined to assess the proposal under the provisions of the Environmental Protection Act 1986 (WA) (EP Act). The process of assessment continues.
During the process of assessment, a number of prospective sites for the gas hub precinct were considered. On 23 December 2008, the Premier and Minister for State Development, the Hon Colin Barnett MLA, announced that the preferred location of the gas hub precinct was in the vicinity of an area situated on the Dampier peninsula north of Broome known as James Price Point, or as Walmadany to the Indigenous people of the area.
During 2009, the Department of State Development prepared a document setting out the scope of the environmental assessment that was to be undertaken in respect of the plan to designate an area at James Price Point as the precinct for the development of a common user gas facility. On 1 December 2009, that document was approved by the EPA.
On 14 July 2010, a master plan showing possible ways in which land in the vicinity of James Price Point could be developed for the purpose of providing the plant necessary to liquefy natural gas and associated facilities was published.
On 30 July 2010, the first respondent, the Chief Executive Officer of the Department of Environment of WA (the CEO), by his delegate, granted to the second respondent, Woodside Energy Ltd (Woodside), a permit to clear not more than 25 ha of native vegetation in the area of James Price Point for the purpose of onshore geotechnical and hydrological investigations undertaken for the purpose of planning the possible development of a liquefied natural gas project. Woodside is the operator of a joint venture which is considering a project for the extraction of natural gas from tenements in the Browse Basin.
The applicant, Mr Joseph Roe, is a member of the Goolarabooloo people, who together with the Jabirr Jabirr people claim traditional ownership of the land surrounding James Price Point. Mr Roe had formally objected to the grant of the clearing permit to Woodside on a variety of grounds. He and others appealed to the third respondent, the Minister for Environment, against the grant of the clearing permit to Woodside. On 7 December 2010, the minister dismissed all appeals against the grant of the Woodside clearing permit.
Mr Roe asserts that the decision of the delegate of the CEO to grant the Woodside clearing permit, and of the minister to dismiss his appeal from the grant of that permit were both unlawful and should be set aside because the clearing permit was related to a significant proposal which had been referred to the EPA, and which had not been assessed by the EPA at the time of either decision. He claims that s 51F of the EP Act prevents the grant of the Woodside clearing permit.
In my opinion, Mr Roe's claims should be dismissed, because there has never been a significant proposal for the development of the gas hub at James Price Point referred to the EPA which would enliven the prohibition upon the grant of a clearing permit prior to assessment of such a proposal. Further, even if, contrary to my view, it were concluded that a significant proposal for the development of a gas hub in the vicinity of James Price Point had been referred to the EPA for assessment, the Woodside clearing permit would not be relevantly 'related to' such a proposal so as to fall within the prohibition contained in s 51F, because the decision to grant the permit is not one which could have the effect of causing or allowing such a proposal to be implemented.
The most effective way to explain the reasons which have drawn me to those conclusions is to place the facts, which are not controversial, into the context of an analysis of the relevant provisions of the EP Act, as they were at the time the decision of the delegate of the CEO and the minister were made. However, before undertaking that analysis, it is convenient to review the decision of the Full Court in Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310 (Chapple's case), because that decision has influenced significantly the current structure of the EP Act, and also because it bears some striking similarities to the present case.
Chapple's case
Chapple's case concerned the question of whether the EPA was legally obliged to conduct an environmental assessment of a Draft Land Use and Management Plan for the Burrup Peninsula. The Burrup Peninsula is an area north of Karratha, in the Pilbara, of extraordinary environmental, archeological and cultural significance. It is also the site of a large plant for the liquefication of natural gas, and associated facilities, operated by Woodside.
The draft plan proposed the division of land on the peninsula which had not already been used for industrial purposes, or leased, into two land use zones. The first, which was to comprise over 60% of the peninsula, was to be a conservation zone, and the second was proposed to be set aside for future industrial development. The second zone would have increased land available for industrial development on the peninsula by an area of almost of 20 square kilometres. The plan expressly acknowledged that the potential industrial developers of land within the second zone, whether private or government, would need to obtain formal environmental and other approvals before development could proceed.
The Full Court was unanimously of the view that the plan was not a proposal which was likely to have a significant effect on the environment which could be referred to the EPA for assessment under s 38 of the EP Act. Insofar as the plan related to the zoning of land, Kennedy J (with whom Ipp J agreed) observed:
In my view, the implementation of a proposal simply to zone land cannot be said to be likely to have significant effect on the environment. To zone land is merely to classify it for future use. Zoning in itself will not confer any rights of development. As the draft plan describes it, the land use planning study has recommended a spatial structure for the future allocation of activities on the Burrup Peninsula (311).
Insofar as the draft plan constituted a management plan, Kennedy J described its provision in these terms:
Various management objectives, rationales and strategies are set out in the draft plan, covering such matters as the management of introduced flora and fauna, the protection of landscape quality, the rehabilitation of degraded habitats and the management of Aboriginal and historic sites.
A capital works programme is laid down in extremely broad terms. It is conceptual in nature and lacks any detail. It has not been developed to the stage where any sensible environmental assessment could be made of it (312).
In his Honour's view:
The mere fact that the plan is described as a draft does not appear to me to be in any respect determinative of the central issue in this matter. There may well be draft proposals which, if implemented, would be likely to have a significant effect on the environment. But I do not consider this to be so in the present case. The reference was premature, as the plan has not yet been sufficiently developed to come within the ambit of s 38. In this respect it must be borne in mind that the proposal may only be referred once to the authority under s 38(5) (312).
Pidgeon J considered that the part of the plan which recommended the setting aside of a zone to preserve the environment in its existing state could not constitute a proposal that appeared likely, if implemented, to have a significant effect on the environment (321). In relation to that part of the plan which proposed to set aside land for future industrial use, Pidgeon J noted that the adoption of the plan would not, as a matter of law, commit the proposed industrial zone to industry (322). In his view, the plan was no more than a recommendation until such time as a decision‑making body made a decision as to the use of the land. In his Honour's view, it was at that point that a proposal might be referred to the EPA for assessment because there would then be a proposal which, if implemented, would appear likely to have a significant effect on the environment.
As a result of the decision in Chapple's case, it was apparent that the practice of referring town planning schemes which zoned land for particular uses to the EPA for assessment was not authorised under the EP Act. Consequently, the following year (1996), pt IV of the EP Act was amended to introduce div 3, which specifically authorised the assessment of town planning schemes. Various other provisions relating to the assessment of town planning schemes were introduced into pt IV of the EP Act. Because they are not directly relevant to the issues in this case, it is unnecessary to refer to those provisions in my analysis of the Act.
It was also clear from the decision in Chapple's case that proposals which had not been developed to the point of sufficient specificity to enable their likely impact upon the environment, if implemented, to be assessed, or which did not themselves propose a change in the use or condition of land or the environment but which envisaged the development of such a proposal in the future, could not be referred to the EPA for assessment under the Act. That also resulted in amendments to the EP Act (some years later, in 2003) which empowered the EPA to receive and assess a 'strategic proposal'. The distinction between the meaning to be given to the expression 'strategic proposal', and the meaning to be given to the expression 'significant proposal' in the EP Act is at the heart of the issues which require determination in this case. It is a matter to which I will shortly turn, in the context of my analysis of the relevant provisions of the EP Act.
The EP Act
The preamble to the EP Act describes it as:
An act to provide for an Environmental Protection Authority, for the prevention, control and abatement of pollution and environmental harm, for the conservation, preservation, protection, enhancement and management of the environment and for matters incidental to or connected with the foregoing.
Section 4A provides that the object of the Act is to protect the environment of the State, having regard to five enunciated principles being:
(1)the precautionary principle;
(2)the principle of intergenerational equity;
(3)the principle of the conservation of biological diversity and ecological integrity;
(4)principles relating to improved valuation, pricing and incentive mechanisms; and
(5)the principle of waste minimisation.
Part II of the Act creates the EPA. Part III contains various provisions relating to the preparation and promulgation of environmental protection policies. Part IV of the Act relates to the assessment of environmental impact by the EPA, and contains many of the provisions which must be analysed and construed in order to determine this case.
Section 37B
Section 37B was inserted by the amendments in 2003 to which I have referred. The section maintains the previous definition of 'significant proposal' as meaning:
A proposal likely, if implemented, to have a significant effect on the environment.
The section also introduces, and defines, the expression 'strategic proposal'. A proposal is a strategic proposal:
[I]f and to the extent to which it identifies:
(a)a future proposal that will be a significant proposal; or
(b)future proposals likely, if implemented in combination with each other, to have a significant effect on the environment.
The word 'proposal' is defined (by s 3 of the EP Act) in very broad terms to mean:
A project, plan, programme, policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing, but does not include [a town planning] scheme.
Significant proposal
Not all proposals can be referred to the EPA for assessment under pt IV of the Act. Excluding from consideration town planning schemes, it is only proposals that fall within the definition of 'significant proposal', or 'strategic proposal' that can be referred and assessed.
A proposal will only fall within the meaning given to the expression 'significant proposal' by s 37B if it would be likely to have a significant effect upon the environment if implemented. The principles enunciated in Chapple's case are central to a proper understanding of that expression. As that case established, a proposal to designate land for a possible use at some time in the future could not, of itself, if implemented, be likely to have a significant impact on the environment. It is only when someone proposes to use or alter the condition of the land or the environment in some way that the proposal is capable of being a 'significant proposal' within the meaning of s 37B. And the proposal must be sufficiently specific to enable its likely effect on the environment, if implemented, to be assessed. The proposal will only have the requisite quality if the likely effect on the environment can be categorised as 'significant'.
The meaning properly given to the expression 'significant proposal' informs the meaning properly given to the expression 'strategic proposal'.
Strategic proposal
In order to be a 'strategic proposal', the proposal must be a 'future proposal that will be a significant proposal', either singularly or in combination. As all proposals have an element of futurity (see McLure JA in Re Minister for Environment; Ex parte Elwood [2007] WASCA 137; (2007) 154 LGERA 366 [7]), at first sight, the expression 'future proposal' is tautological. However, the tautology is avoided if the expression is read in the context of the words around it, particularly having regard to the proper meaning to be given to the expression 'significant proposal'. While a 'significant proposal' will necessarily have an element of futurity, it will not meet that description unless it involves an existing proposal, by someone, to use land in a particular way, or alter the condition of land or the environment, with the requisite degree of specificity to enable the likely effect of the proposal, if implemented, to be assessed. A strategic proposal is therefore a proposal which does not yet have that character but which identifies a proposal which will acquire that character if and when proposed at some point in the future. The Draft Land Use and Management Plan for the Burrup Peninsula considered in Chapple's case provides a good example of a 'strategic proposal'. As the Full Court held, the draft plan was not itself a 'significant proposal', but it was a plan which would, if implemented, be likely to lead to the development of significant proposals in the future, for the development of industrial projects in the area designated for industrial use.
Section 39B
This approach to the construction of the expression 'strategic proposal' is reinforced by s 39B, which was also introduced by the 2003 amendments. That section provides that when a proposal is referred to the EPA under s 38, the proponent may request the authority to declare the proposal to be a 'derived proposal'. If that request is made, the EPA is required to declare the proposal to be a derived proposal if it considers that it was identified in the strategic proposal that had been assessed under pt IV, and after a report of the assessment was published, it was agreed or decided that the particular proposal could be implemented, or could be implemented subject to conditions. However, the EPA may refuse to declare the proposal to be a derived proposal if it considers that environmental issues raised by the proposal were not adequately assessed when the strategic proposal was assessed, or there is significant new or additional information that justifies the reassessment of the issues raised by the proposal, or there has been a significant change in the relevant environmental factors since the strategic proposal was assessed.
Pursuant to s 39B, if the authority declares the proposal to be a derived proposal, it is not to assess the proposal (except for a very limited purpose not presently relevant).
A coherent and rational legislative scheme is evident in these provisions. That scheme provides a framework by which proposals which have not yet crystallised to the point where they come within the expression 'significant proposal', may nevertheless be referred and environmentally assessed by the EPA. If, after such an assessment, a significant proposal does crystallise, and is within the scope of the assessment undertaken by reference to the strategic proposal, and there has been no relevant change in circumstances or environmental factors, that proposal is not further assessed.
Section 38 - referrals
There are a number of aspects of the provisions of s 38 relating to the referral of proposals to the EPA which are pertinent to the issues in this case. First, subject to two irrelevant exceptions, while any person may refer a significant proposal to the authority, only the proponent of a strategic proposal may refer it to the EPA. The word 'proponent' is defined (by s 3 of the EP Act) to mean the person who or which is responsible for the proposal.
Second, as soon as a decision‑making authority has noticed a proposal that appears to it to be a significant proposal, it is obliged to refer the proposal to the EPA. There is no obligation imposed upon decision‑making authorities to refer strategic proposals to the EPA. (A decision‑making authority is defined by s 3 of the EP Act to mean a public authority empowered to make a decision in respect of any proposal.)
Third, if the EPA considers that a significant proposal has not been referred to it, it is obliged to require the proponent, or a decision‑making authority to refer that proposal to it. There is no equivalent obligation relating to a strategic proposal.
Fourth, a proposal cannot be referred to the EPA more than once, unless assessment has been terminated under other provisions of pt IV or unless there has been a major change in the implementation conditions attaching to the proposal.
Fifth, apart from the obligations imposed upon decision‑making authorities and the EPA itself, there is no obligation upon anyone to refer a significant proposal to the EPA.
Sixth, there is no obligation imposed upon anyone to refer a strategic proposal to the EPA.
Seventh, consistently with there being no obligation upon a proponent to refer a significant proposal to the EPA, the Act contains no prohibition upon the implementation of a significant proposal (as McLure JA observed in Elwood [11]). However, various provisions of pt V of the Act create offences relating to the causing of pollution, unreasonable emissions, and causing serious or material environmental harm. The Act (in s 74A) provides defences to proceedings brought under pt V of the Act if the relevant pollution, emission or environmental harm occurred in the implementation of a proposal in accordance with an implementation agreement, or decision made under pt IV of the Act. This creates an incentive for proponents of significant proposals to refer such proposals to the EPA.
The various differences between the provisions of the Act relating to the referral of significant proposals to the EPA, and the provisions relating to the referral of a strategic proposal reinforce the conclusions I have drawn as to the meanings to be given to those expressions, and reinforce the conclusions I have drawn as to the evident scheme of the Act.
Section 39A - decision as to assessment
Pursuant to s 39A, after a proposal has been referred to the EPA under s 38, the EPA is obliged to decide whether or not to assess the proposal. For that purpose it may request further information pursuant to s 38A of the EP Act. The EPA must give notice of its decision on the question of whether or not it is going to assess the proposal to the proponent, any other person who may have referred the proposal to it, and any relevant decision‑making authority.
Assessment
Section 40 of the EP Act contains various provisions empowering the authority to obtain information for the purposes of assessment of referred proposals, including by conducting public inquiries. Section 42 contains provisions relating to the conduct of these inquiries by the authority as part of the process of assessment.
The precise identification of a referred proposal
As Buss JA observed in Elwood [99], it will often be necessary to determine with precision the content of the proposal that has been referred to the EPA. There are a number of provisions of pt IV which reinforce that observation. I have already referred to one such provision - namely, s 38(5)(j) which, subject to the two qualifications already mentioned, prohibits the reference of a proposal to the EPA more than once. For the purposes of the application of that provision, it may be necessary to identify with precision the ambit and content of the proposal that was previously referred to the authority, for the purposes of ascertaining whether a subsequent proposal is relevantly the same.
Further, under s 39 of the EP Act, the EPA is required to keep a public record of each proposal referred to it setting out whether or not the proposal is to be assessed, and if so, the level of assessment. Section 41 of the EP Act provides that a decision‑making authority that has referred a proposal to the EPA, or has been required to refer a proposal to the EPA, is precluded from making any decision that could have the effect of causing or allowing the proposal to be implemented until it has been informed that the EPA is not going to assess the proposal, and either the relevant period within which an appeal from that decision can be brought has expired without an appeal being brought, or such an appeal has been determined. In the event that the EPA decides to assess the proposal, a decision‑making authority is precluded from making a decision that would have the effect of causing or allowing the proposal to be implemented until the process of assessment, and decisions relating to implementation, and the conditions attaching to implementation have been completed, unless the authority has been served with express authority to do so under s 45(7). Obviously the precise ambit of the prohibition imposed upon decision‑making authorities by that section will depend upon the precise scope and ambit of the proposal that has been referred to the EPA.
Further, s 41A provides that where the EPA has decided to assess a proposal, anyone who does anything to implement the proposal before the process of assessment, and the making of decisions in respect of implementation is complete, commits an offence. Again, the ambit of the conduct falling within the scope of the offence will depend upon the ambit of the proposal that has been referred and is being assessed.
However, s 40B provides that neither s 41, nor s 41A apply to a strategic proposal, except 'to the extent to which the strategic proposal is itself a significant proposal'. At first sight, this provision seems consistent with the legislative scheme to which I have referred. Because strategic proposals are those which identify proposals which will, if proposed at some time in the future, be significant proposals, the implementation of a strategic proposal could not be likely to have a significant effect on the environment, and there is therefore no need to constrain the implementation of strategic proposals prior to assessment. On the other hand, if and when a significant proposal has materialised, implementation of that proposal could have a significant effect on the environment with the result that implementation must be constrained until the process of assessment, and decision making subsequent to assessment has been completed.
However, the language used in s 40B creates a conundrum, by referring to a strategic proposal to the extent to which the strategic proposal is itself a significant proposal. As I have already noted, pursuant to s 37B, a proposal is only a strategic proposal 'if and to the extent to which it identifies a future proposal that will be a significant proposal'. It follows from that definition that a strategic proposal cannot be, of itself, a significant proposal, because it is limited to a proposal that identifies a proposal that will, at some point in the future, if and when it is proposed be a significant proposal. When that future time is reached, and the proposal is made, it will be a significant proposal, not a strategic proposal. Until then, there is no significant proposal.
The conundrum is best resolved by construing s 40B as providing, perhaps out of an abundance of caution, for the circumstance in which a single proposal might contain some aspects which are characterised as strategic proposals, and other aspects which are characterised as significant proposals. Using the facts of Chapple's case as an example, to the extent that the land use plan designated areas to be zoned for future uses, the proposal would be a strategic proposal unless and until a developer proposed to use land for the relevant purpose. However, if the plan had included a proposal to construct a road through areas of great archaeological significance in order to provide access to the designated land, it may, to that extent, have been a significant proposal. In such a case, s 40B should be construed as providing that, to the extent that the proposal is a strategic proposal, there is no constraint upon implementation, but, to the extent that the proposal is a significant proposal, the normal constraints apply.
However s 40B is construed, its application requires a delineation between that part of a proposal which is 'strategic', and that part of a proposal which is 'significant'. Because the constraints imposed by s 41 and s 41A apply only to proposals that have been referred to the EPA, the process of delineation required by s 40B will inevitably necessitate the precise identification of the scope and ambit of the proposal that has been referred.
The importance of the identification of the scope and ambit of the proposal that has been referred to the EPA is further reinforced by those provisions in pt IV of the EP Act which relate to changes and revisions to proposals. Section 43A provides that while a proposal is being assessed, the EPA may consent to the proponent changing the proposal without a revised proposal being referred, but only if the EPA considers that the change is unlikely to significantly increase any impact that the proposal may have on the environment.
Similarly, s 45C provides that after a statement has been issued (pursuant to s 45(5)), setting out the terms of the implementation agreement or a decision that the proposal may be implemented subject to conditions, the minister may approve a change in the proposal without a revised proposal being referred to the EPA, provided that he or she does not consider that the changes might have a significant detrimental effect on the environment in addition to, or different from, the effect of the original proposal. The scope of this section was considered extensively in Elwood's case. For present purposes, it is sufficient to note that the operation of each of s 43A and s 45C depend upon an assessment of the change proposed, in the context of the proposal referred to the EPA, and that that assessment therefore necessarily requires precise identification of the scope of the proposal referred.
Perhaps curiously, there is no express provision in pt IV of the EP Act for the referral of a revised proposal to the EPA. However, it is necessarily implicit in the language of each of s 43A, s 45B, s 45C and s 46B that revised proposals may be referred to the EPA, necessarily under s 38, and dealt with accordingly.
This analysis of the provisions of pt IV of the EP Act, which emphasises the importance of the identification of the precise ambit and scope of the proposal referred to the EPA, reveals another component of the scheme which underpins pt IV. The operative provisions of that Part focus critically upon proposals which have been referred to the EPA. Once a proposal has been referred to the EPA, and a decision is made to assess the proposal, the proposal may only be changed if the change is unlikely to significantly increase any impact that the proposal may have on the environment. If the change proposed is not of that character, then it is necessary to refer a revised proposal to the EPA for its consideration. This scheme further reinforces the importance of identifying, at any point in time, precisely that which has been referred to the EPA, for the purpose of ascertaining the precise ambit of the various operative provisions and constraints contained within pt IV of the Act.
The provisions of pt IV relating to implementation following assessment further reinforce the importance of identifying the scope of the proposal referred. Section 47 provides that a proponent who fails to ensure that any implementation of the proposal the subject of a statement issued under s 45 is carried out in accordance with the implementation conditions commits an offence. The ambit of that offence will depend upon whether or not any particular action relevantly constitutes 'implementation of the proposal' and will therefore depend upon the ambit of the proposal which was referred and assessed. Section 48 of the EP Act confers certain powers with respect to the monitoring and control of the implementation of proposals which also depend, for their scope, upon the precise identification of the scope of the proposal referred and assessed.
Clearing of native vegetation
As I have mentioned, pt V of the Act contains a number of provisions prohibiting acts detrimental to the environment. Division 2 of pt V is concerned with the clearing of native vegetation. Section 51C, within that Division, creates the offence of unauthorised clearing of native vegetation. Clearing is unauthorised unless it is done in accordance with a clearing permit, or in certain other circumstances which need not be enunciated at this point.
Section 51E makes provision for the grant of clearing permits, and creates a mechanism for the making, advertising and consideration of applications for such permits. Section 51E(5) imposes a duty upon the CEO to either grant a clearing permit subject to such conditions as are specified in the permit, or refuse to grant a permit, following the receipt and consideration of an application.
At the time of the decisions impugned in these proceedings, s 51F was in the following terms:
(1)If an application for a clearing permit made under s 51E(1) is related to a proposal which has been referred to the Authority under s 38, the CEO shall not perform any duty imposed on the CEO by s 51E(5):
(a)while any decision‑making authority is precluded by s 41 from making any decision which could have the effect of causing or allowing that proposal to be implemented; or
(b)contrary to, or otherwise than in accordance with, an implementation agreement or decision.
(2)If a decision‑making authority makes a decision that has the effect of preventing the implementation of a proposal to which an application for a clearing permit made under s 51E(1) is related, the CEO does not have to perform any duty imposed under s 51E(5) while that decision has effect.
Mr Roe relies upon the prohibition of the grant of a clearing permit contained in s 51F(1). He asserts that at all material times there have been a number of decision‑making authorities that were precluded by s 41 from making any decision which could have the effect of causing or allowing a proposal which had been referred to the authority under s 38 to be implemented. Because of s 40B, it is necessary for him to also assert, and he does, that a proposal had been referred to the authority under s 38 which was a significant proposal (and not merely a strategic proposal), and that Woodside's application for a clearing permit was related to that proposal.
In order to ascertain whether those assertions have been made good, it is necessary to now review the evidence, in the context of the legislative scheme which I have identified.
The Northern Development Taskforce
In June 2007 the Government of Western Australia created a group known as the Northern Development Taskforce, charged with the responsibility of identifying prospective sites in the West Kimberley for the possible location of a multi-user liquefied natural gas precinct. The Taskforce initially evaluated 43 alternative sites.
The Commonwealth‑State agreement
On 6 February 2008 the Commonwealth Government, and the Government of Western Australia, through their respective ministers, entered into an agreement for a strategic assessment of the environmental aspects of what the agreement describes as the 'Plan for a Common‑User Liquefied Natural Gas Hub Precinct and its associated activities'. The agreement specifically refers to s 146 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), which empowers the Commonwealth minister to agree in writing with the person responsible for the adoption or implementation of a policy, plan or programme that an assessment be made of the impact of actions under that policy, plan or programme. The agreement also specifically refers to s 38 of the EP Act, and the authority of the EPA to carry out an assessment of a strategic proposal under the EP Act. The preamble to the agreement records that both governments commit to undertake assessments under s 146 of the EPBC Act and s 38 of the EP Act respectively. The same clause records that in order:
To ensure the best sustainable and timely outcome, assessment of the plan will be undertaken concurrently through a coordinated and collaborative process, producing a set of reports that meet the requirements of both the EPBC Act and the EP Act.
The agreement further records that it is intended that the assessment will be undertaken in accordance with Terms of Reference, to be approved under the agreement. Draft Terms of Reference are attachment B to the agreement. The agreement provides that the Government of Western Australia was to provide the Draft Terms of Reference for public comment, and for a process whereby the two governments would thereafter agree upon the Terms of Reference to be approved under the agreement.
The agreement also refers to prior collaboration between the parties with respect to the development of draft selection criteria, which are set out at attachment A to the agreement. It is also recorded that the process for selection of the precinct will consider feasible alternatives to locations of the precinct outside the Kimberley region. The agreement records that the parties were to finalise the selection criteria following further consultations.
The agreement further provides that after Terms of Reference have been approved pursuant to its provisions, the Government of Western Australia was to prepare a Draft Report in accordance with those terms. The Draft Report was to be made available for public comment, and thereafter finalised and provided to the Commonwealth minister, who would consider the Final Report pursuant to the provisions of s 146 of the EPBC Act.
The draft site selection criteria attached to the agreement set out a significant number of matters that were to be taken into account as part of the process of site selection. Those matters are not limited to environmental considerations, but include socio‑economic and industrial considerations.
The draft Terms of Reference attached to the agreement set out various matters to be addressed in the report to be prepared pursuant to the provisions of the agreement.
There are two maps attached to the agreement, one of which identifies the general area to be assessed for the purposes of identifying a possible precinct. Broadly speaking, the area designated to be assessed covers most of the Kimberley coast.
The referral to the EPA
By letter dated 25 March 2008, the Hon Eric Ripper MLA, in his capacity as Minister for State Development, wrote to the EPA referring 'the plan for a multi‑user hub to service development of Browse Basin gas' to the EPA, under s 38(3) of the EP Act. The letter enclosed a copy of the Commonwealth‑State agreement, and referred to the concurrent and collaborative strategic assessment of the plans for a multi‑user liquefied natural gas hub under both the Commonwealth and State Acts.
The letter also refers to the process of site selection that was then underway, and notes that the agreement allows the State and Commonwealth governments to consider feasible alternative locations of the hub which might be outside the Kimberley.
The letter records that the precinct is intended to be capable of processing all the gas produced from the Browse Basin, being in the order of 50 million tonnes of liquefied natural gas a year, and potentially to include downstream gas processing industries. The letter further notes that it is currently estimated that the hub precinct would be a land area of approximately 1,000 ha, plus additional land for associated port and ancillary facilities. The letter foreshadows refinement of that area following the receipt of specialist engineering advice and a final determination of the hub model, the scope of downstream gas processing to be catered for, and the services to be provided to the precinct, such as the airport and accommodation facilities.
The EPA's assessment
On 9 April 2008 the EPA (through its delegate, the chairman of the EPA) decided to assess the proposal which had been referred by the Minister for State Development as a strategic proposal, through a process of assessment described as a 'Strategic Environmental Assessment'. By letter dated 14 April 2008, an officer of the EPA wrote to the Minister for State Development advising of this decision. Letters were also sent giving notice of the decision to various decision‑making authorities. On the same day, the decision was published on the website of the EPA and advertised in a newspaper circulating throughout Western Australia.
The letter to the Minister for State Development identified the proponent of the proposal as the Minister, and advised him that he was required to prepare an Environmental Scoping Document.
Was the referred proposal a strategic proposal?
As I have noted, the EPA categorised the proposal which had been referred by the Minister for State Development as a strategic proposal. Of course the EPA's categorisation of the proposal is not determinative. Whether a particular proposal is a 'strategic proposal' or a 'significant proposal' within the meaning of those expressions in the Act, is a matter to be determined by applying the proper constructions of those provisions to the precise nature of the proposal referred to the EPA.
However, there can be no doubt that the EPA's characterisation of the proposal which had been referred by the Minister for State Development as a strategic proposal was correct. The proposal which had been referred was essentially a proposal which would enable the identification of an area to be designated and set aside for possible use as a multi‑user gas hub precinct at some time in the future. The proposal included the process for the environmental assessment of the designated area, in accordance with the Terms of Reference to be approved under the Commonwealth‑State agreement, and pursuant to the provisions of each of the Commonwealth and State Acts.
Plainly, the proposal to designate an area of land for possible future use as a precinct, and to investigate the environmental impact of such a use was not a proposal which, if implemented, would be likely to have a significant effect on the environment. The proposal was analogous to the land use management plan considered by the court in Chapple's case. The designation of land for future use, and the assessment of the environmental impact of such a use are not steps which can, of themselves, have a significant effect on the environment (unless the environmental assessment proposed requires a change in the use or condition of the land or the environment). However, they are steps that are likely to identify a proposal, which might be advanced at some point in the future. That proposal would be a significant proposal, because it would involve the construction of a large plant for the processing of liquefied natural gas, and associated facilities. Obviously the proposal for the construction of such a plant and associated facilities would be a proposal likely, if implemented, to have a significant effect on the environment, and would therefore be a significant proposal, within the nomenclature of the Act, if and when such a proposal materialised.
The conclusion that the proposal referred to the EPA by the Minister for State Development was a 'strategic proposal' only, which did not include any existing proposal which could be characterised as a 'significant proposal', is fatal to Mr Roe's case. That is because he accepts, through his counsel, consistently with the evidence, that no other proposal was ever referred to the EPA under s 38 of the Act. As I have already indicated, the precise identification of the scope, content, and characterisation of any proposal referred to the EPA is critical to the operation of the legislative scheme created by pt IV of the EP Act, including the scope of the constraint upon decision‑making authorities imposed by s 41 of the EP Act, and therefore the scope of the constraint imposed upon the grant of a clearing permit pursuant to s 51F of the EP Act. Because the proposal referred to the authority was entirely a strategic proposal, there was, and never has been any constraint upon a decision‑making authority making a decision that could have the effect of causing or allowing that proposal to be implemented. Because no decision‑making authority was precluded by s 41 from making any decision which could have the effect of causing or allowing the proposal that had been referred to the authority to be implemented, s 51F does not impose any constraint upon the CEO's performance of the duties imposed upon him by s 51E with respect to the grant of clearing permits.
Mr Roe seeks to resist this conclusion by asserting, through his counsel, that through some means or process, the proposal that had been referred to the EPA had transmogrified into a significant proposal by the time the CEO granted the Woodside clearing permit. However, that submission is entirely antithetical to the legislative scheme I have identified, which focuses attention upon the precise scope and content of a proposal referred to the EPA in writing, and contains particular provisions identifying the limited extent to which proposals may be changed (eg, s 43A, s 45C) and for the referral of revised proposals. Through his counsel, Mr Roe accepted, as he must, that it could not be contended that the transmogrification of a strategic proposal into a significant proposal came within the scope of those parts of the Act which permits changes to proposals. That is because such a transmogrification would take the proposal from one which was incapable of having any adverse impact upon the environment if implemented, to one which was capable of having such an impact, and which therefore would necessarily fall outside the scope of provisions such as s 43A and s 45C. It follows that if and when such a proposal materialised, in order to come within the statutory process of assessment established by pt IV of the Act, it would have to be referred in writing to the EPA in accordance with s 38 of the EP Act. And, as the evidence establishes and counsel accepted, no revised proposal, or other proposal of any kind has ever been referred to the EPA relating to the multi‑user gas hub precinct in the Kimberley at any time since the referral by the minister on 25 March 2008. On the construction of the Act which I have set out, that is necessarily the end of Mr Roe's case.
It is pertinent to observe that if there is in existence a 'significant proposal' relating to the construction of a natural gas hub in the vicinity of James Price Point, any person, including Mr Roe, has the right to refer that proposal to the EPA (s 38(1)). If, as Mr Roe asserts, there is such a proposal, he has never exercised that right, with the result that none of the constraints imposed by the EP Act following the referral of a significant proposal to the EPA have ever come into force.
The letter to the Minister for State Development advising him of the decision of the EPA to assess his proposal as a strategic proposal, and the letters sent on the same date to various decision‑making authorities advising them of the EPA's decision wrongly asserted that:
The EP Act requires that no decision should be made to allow or implement this proposal until the EPA has reported to the Minister for the Environment, and the Minister has authorised implementation or otherwise.
This assertion was incorrect because the constraints imposed upon decision‑making authorities by s 41 of the EP Act had no application to the proposal referred by the minister, because it was an entirely strategic proposal. However, just as the EPA's characterisation of the proposal which it received was not legally determinative, in the circumstances of this case, the error made by the EPA in this correspondence is of no legal effect.
The views I have already expressed are sufficient to dispose of Mr Roe's claim. However, out of deference to the arguments presented, I will continue with the factual narrative, and address some of those arguments.
The selection of James Price Point
In December 2008 the Northern Development Taskforce released its final site evaluation report, recommending that the area in the vicinity of James Price Point be the preferred location for the gas processing precinct in the Kimberley. On 23 December 2008, the Premier and Minister for State Development, the Hon Colin Barnett MLA, announced that the government's preferred location for the precinct was in the vicinity of James Price Point. As a consequence, all subsequent site investigation and environmental assessment has been focused upon that location, to the exclusion of the other 42 sites which had been evaluated.
Prospective proponents
In May 2009 the Department of State Development invited all holders of petroleum tenements in the Browse Basin to register interest in becoming a potential user of the precinct. Woodside, in its capacity as the operator of the Browse Joint Venture, was the only tenement holder to express interest in becoming a potential foundation proponent. I take that expression to mean an entity which had the potential to pursue plans for the possible development of the precinct to the point where it would become the first, or one of the first proponents to propose the physical development of industrial facilities on the site. Three other tenement holders expressed interest in becoming potential future users of the precinct, albeit not as potential foundation proponents. Woodside was designated the only potential foundation proponent in October 2009.
The scoping document
During 2009, as part of the process of environmental assessment, the Department of State Development prepared a document entitled 'Browse LNG Precinct - Scope of the Strategic Assessment'. On 1 December 2009, that document was approved by the EPA.
As its title suggests, the document provides a description of the scope of the environmental assessment that was to be undertaken. It is consistent with the Terms of Reference approved under the Commonwealth‑State agreement. More specifically, the document:
•describes the prospective site, and outlines the proposed development;
•identifies and describes the relevant environment factors;
•presents the risk assessment process and identifies potential environmental and social impacts (acknowledging that it was at a very early stage of the environmental assessment process); and
•details the scope of the studies and investigations that were to be undertaken to address the potential impacts, and the timing of those studies and investigations.
The scoping document identifies, in general terms, the precinct that was to be environmentally assessed. It also identifies, in very general terms, the nature of the development that would be undertaken if the area was designated as the site for future development, and if that development proceeded. It did so for the purpose of enabling an environmental assessment of such prospective development. It therefore formed part of the process envisaged within the second component of the strategic proposal that had been referred by the Minister for State Development to the EPA - namely, the environmental assessment of possible future development of the designated site.
Significantly, no part of the scoping document proposes the actual development, or physical construction of anything. The State, which prepared the document, has never proposed to undertake development in its own right. Rather, the State identified a possible future development, which may or may not occur, for the purpose of environmental assessment. This is the paradigm example of a 'strategic proposal', as it identifies a future proposal which would, if it materialised, be a 'significant proposal'.
The master plan
In July 2010 consultants engaged by the Department of State Development produced a document entitled 'Browse LNG Precinct - Master Plan Report'. The master plan identifies ways in which particular areas of land might be developed in future, so as to provide for the construction of a liquefied natural gas plant or plants and associated facilities. One of the objectives of the plan, described in the document, was 'to provide flexibility within the land allotments to accommodate varying LNG technology options, different approaches to design, construction and development'. No doubt this approach was taken because no prospective developer of the site has actually formulated a defined plan for the construction of any particular plant or associated facilities.
The document further records that many aspects of the master plan require further investigation in order to finalise their layout or design, with the result that the layouts indicated in the plan should be viewed as indicative only. The document describes its objective as being:
To ensure the precinct remains an effective option for future developers of gas projects in the Kimberley.
The document contains a number of possible development scenarios and options. It does not purport to propose any particular form of development, nor was it prepared by any particular developer, or prospective developer. The document is properly characterised as a further part of the planning process relating to the possible future development of the site and, to the extent that it informs and assists the process of environmental assessment, is properly regarded as another part of the process envisaged within the strategic proposal referred to the EPA by the Minister for State Development in March 2008.
Mr Roe submitted that the scoping document and the master plan together should be regarded as comprising a 'significant proposal' within the meaning of that term in the EP Act. However, in order to fall within that description, they would have to constitute a proposal, which if implemented, would be likely to have a significant effect on the environment. Neither document proposes the undertaking of any work which would have a significant effect on the environment. The scoping document identifies the scope of the environmental assessment that was to be undertaken. The master plan identifies options for future development. It does not propose the actual development of the site. As I have indicated, it was not prepared for or on behalf of any prospective developer, and no developer has committed to undertaking any development on the site. Accordingly, even if the scoping document and master plan could be taken to have been referred to the EPA under s 38 of the EP Act, that would not have constituted the referral of a 'significant proposal' which would enliven the constraints upon the powers of decision‑making authorities, or the constraint upon the power of the CEO to grant a clearing permit.
Woodside's position
Woodside's position is set out in affidavits sworn by Mr Steven Banks and Mr Soolim Carney, who are each officers of Woodside. Those affidavits establish that Woodside, as operator of the Browse Joint Venture, is currently considering constructing facilities at the area which has been designated as the prospective precinct, in order to handle 12 million tonnes of liquefied natural gas per annum, but with the capacity to expand those facilities to be able to process up to 25 million tonnes of liquefied natural gas per annum. However, no final investment decision has been made to proceed with the construction of those facilities.
Planning work is being undertaken by Woodside on the basis that the Browse Joint Venture might construct all of the downstream facilities in relation to its gas from the Browse gas fields, including the maritime infrastructure, pipelines and all onshore facilities, together with ancillary work such as accommodation for workers. Some of that infrastructure might be constructed in the common user area and shared with other prospective users in the future. Investigative work is being undertaken for the purposes of developing the possible design for the facilities and infrastructure, prior to making a decision to proceed with construction. Detailed engineering design for the prospective facilities is not yet available.
It is clear from the evidence that while Woodside, on behalf of the Browse Joint Venture may, at some time in the future, become the proponent of a proposal to construct a plant and associated facilities for the processing of liquefied natural gas in the vicinity of James Price Point, it is not yet such a proponent. If Woodside does become such a proponent, no doubt it could request the authority to declare its proposal to be a derived proposal, under s 39B of the EP Act. If the EPA considers that its proposal was identified in the strategic proposal that is being assessed, and the environmental issues raised by Woodside's proposal were adequately assessed in the course of that assessment, and there is no significant new or additional information that justifies reassessment of the issues raised by the proposal or any significant change in relevant environmental factors, the EPA may declare the referred proposal to be a derived proposal, with the result that it will not require further assessment. However, the possibility that Woodside may, at some time in the future, refer a proposal to the EPA which is declared to be a derived proposal sheds no light on the critical question of whether there is, currently in existence, any 'significant proposal' capable of being referred to the EPA. For the reasons I have given above, the evidence does not establish the existence of any such proposal. This is another reason why Mr Roe's claim must fail.
The Woodside clearing permit
On 25 May 2010 Woodside applied to the CEO for the grant of clearing permit pursuant to s 51E of the EP Act. The application described the purpose of clearing to be:
Onshore site investigations to develop approvals documentation and to inform the design of a proposed Browse Liquid Natural Gas Precinct.
The proposed method of clearing was described as:
Removal of native vegetation to provide suitable access and working areas for onshore site investigations. Topsoil to be removed and vegetation mulched for future rehabilitation.
The total area of clearing proposed was 25 ha.
The evidence of the Woodside officers to which I have referred confirms that the purpose for which the permit was sought was to enable geotechnical and hydrological studies to be undertaken within the area of the proposed precinct. The geotechnical investigations are required to assist with engineering design works, which might influence the content and layout of the proposed facilities and infrastructure, and the environmental impact of those facilities. For example, data from hydrological bores is required to be fed into the assessment of the impact of water extraction on water reservoirs, which in turn would inform the engineering design by providing data on the water available. It is therefore clear that the purpose of the clearing permit was to facilitate development of the design of the plant which might possibly be constructed at some time in the future, if an investment decision is made, which design would inform the assessment of the environmental impact of any proposal to proceed with construction. Plainly, the clearing permit is not sought for the purpose of constructing the project itself, but for the purpose of the planning and assessment process.
The scope of s 51F
The decision of the CEO to grant Woodside's application for a clearing permit, and the decision of the minister to dismiss Mr Roe's appeal against that decision, could not have the effect of causing or allowing any proposal to develop a multi‑user gas processing hub at James Price Point. As I have found, the permit was not sought for that purpose, and could not have that effect. Accordingly, even if there had been a significant proposal for the construction of such a plant under assessment by the EPA, and the CEO was regarded as a 'decision‑making authority' for the purposes of s 41 of the EP Act, that section would not have prevented the grant of the clearing permit. The question which I will now address, albeit on the basis of a hypothetical assumption that there is a significant proposal under assessment by the EPA, is whether s 51F should be construed so as to prohibit the grant of a clearing permit, notwithstanding that decision to grant such a permit could not have effect of causing or allowing the proposal to be implemented.
Section 51F only applies at a time when a decision‑making authority is precluded by s 41 from making a decision which could have the effect of causing or allowing a proposal under assessment by the EPA to be implemented. Further, in order to come within the constraint imposed by s 51F, the clearing permit must be 'related to' such a proposal.
The expression 'related to' is one of the expressions commonly used in statutes to identify a connection between two matters. The expression is capable of operating broadly (see for example, Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366 [217]), but the nature of the connection required between the two matters will necessarily depend upon the context in which the expression appears - see Workers Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642, 653 ‑ 654. Accordingly, the citation of authority on the meaning to be given to the expression will be of limited assistance unless the authority relates to similar or analogous statutory settings - see Woodside Energy Ltd v Commissioner of Taxation (No 2) [2007] FCA 1961; (2007) 69 ATR 465 [270].
If, in the context of s 51F, the expression 'related to' were given its full potential breadth of meaning, it could undermine the legislative scheme evident in the Act. For example, it is easy to envisage a situation in which limited clearing of native vegetation is necessary in order to undertake an environmental assessment required by the EP Act. In such a case, the clearing permit would be 'related to' the proposal which necessitated the assessment, if that expression is given a broad meaning. The consequence would be that the CEO would then be precluded from granting a clearing permit, notwithstanding that its purpose was to enable environmental assessment to be undertaken under the Act. If the clearing of native vegetation was an essential part of the environmental assessment process, that process would never be complete, the proposal could never be evaluated, and the project could never proceed. As the legislature could not have intended such a perverse consequence, such a construction of s 51F should be rejected.
It was suggested in argument by counsel for the first and third respondent that such a perverse outcome might be avoided through the combined operation of s 40 and sch 6 of the EP Act. Schedule 6, read with s 51C, authorises clearing that is done in order to give effect to a requirement to clear under a written law without the need for a clearing permit. Section 40(9) provides that a proponent upon whom a requirement has been imposed under specified provisions of s 40 is obliged to comply with that requirement. However, the specified provisions are, relevantly, the requirement to provide information, the requirement to provide a contaminated site auditor's report, the requirement to undertake an environmental review, and the requirement to respond to submissions. There is no power, conferred by s 40, to specifically require a proponent to clear land of native vegetation. Accordingly, notwithstanding its ingenuity, this argument does not overcome the perverse consequences which would flow unless the express 'related to' in s 51F is construed as requiring a relevant connection between the proposal which has been referred, and the grant of the clearing permit, and not merely any connection at all.
Section 51F itself identifies the nature of the connection which will supply the requisite degree of relevance, by its specific reference to a constraint imposed by s 41 of the EP Act. Such a constraint only applies if the decision to be made could have the effect of causing or allowing the proposal that has been referred to the EPA to be implemented. There is no reason to suppose that the legislature intended that the constraint imposed by s 51F should be any wider than the constraints imposed by s 41, especially given that the constraints imposed by s 51F only apply during the period the constraints imposed by s 41 are in force. Counsel for Mr Roe was unable to suggest any policy reason why the ambit of the constraint imposed upon the grant of a clearing permit should be any wider than the ambit of the constraint imposed upon any other decision that might have the effect of causing or allowing a referred proposal to be implemented. While it must be acknowledged that the legislature has not adopted precisely the same structure as had been utilised in s 41, it may well be that the structure of s 51F was driven by the desire to ensure in a short‑hand way, the coterminous operation of the two sections, given the qualification upon the operation of s 41 contained in s 40B, and which would have had to be replicated in s 51F if the same structure was adopted as in s 41.
Accordingly, in my view a sensible and purposive construction of s 51F requires the clearing permit to be related to a proposal that has been referred to the EPA in such a way that the grant of the permit could have the effect of causing or allowing the proposal to be implemented, before the constraint imposed by the section applies. On the hypothetical assumption that there was a significant proposal before the EPA for the construction of a multi‑user gas processing precinct, the grant of the clearing permit sought by Woodside could not have had the effect of causing or allowing that proposal to be implemented, and would not therefore have been relevantly 'related to' such a proposal to enliven the constraint imposed by s 51F.
Accordingly, even if I had concluded that there was a significant proposal for the construction of a multi‑user gas processing plant in the vicinity of James Price Point under assessment by the EPA, I would have concluded that s 51F did not prohibit the grant of the Woodside clearing permit, because the grant of that permit could not have had the effect of causing or allowing such a proposal to be implemented and would therefore have fallen outside the scope of s 51F of the EP Act.
For these various reasons the applicant's claim should be dismissed.
BUSS JA: The Browse Basin is located in coastal waters off the north‑west coast of Western Australia. It contains substantial reserves of natural gas.
On 6 February 2008, the State of Western Australia and the Commonwealth of Australia entered into an agreement (State/Commonwealth Agreement) for 'the assessment of impacts of actions under the Plan for a Common‑User Liquefied Natural Gas Hub Precinct' (cl 4.1) and 'associated activities' (cl 3.2).
The State/Commonwealth Agreement related to the gas resources in the Browse Basin. The precinct (the Precinct) contemplated in the Agreement was an area of land suitable for the development and construction of infrastructure and facilities for liquefying, processing and storing natural gas extracted from the Browse Basin, including a port and facilities for activities associated with gas liquefication, processing and storage. The purpose of the Agreement was to coordinate the assessment under State and Commonwealth legislation of the environmental impact of the establishment of a common‑user liquefied natural gas hub on the area of land chosen for the Precinct.
Clause 3.1 of the State/Commonwealth Agreement noted that the Kimberley region of Western Australia has significant environmental and heritage values as well as significant economic potential in relation to the extraction and processing of natural gas from the Browse Basin.
By cl 6.1 of the State/Commonwealth Agreement, the State of Western Australia agreed to cause a draft report to be prepared in accordance with terms of reference to be agreed pursuant to cl 5. Draft terms of reference annexed to the Agreement specified that the report must provide a justification for the need to develop the Precinct, should include an analysis of the socio‑economic issues/implications associated with the development of the Precinct, and must include a comprehensive
description of how the proposed site or sites for the Precinct were identified.
By letter dated 25 March 2008, the Minister for State Development of Western Australia referred to the Environmental Protection Authority (the Authority), pursuant to s 38 of the Environmental Protection Act 1986 (WA) (the Act), the State Government's plan for 'a multi‑user LNG hub to process the gas resources in the Browse Basin' (the Proposal). The State was the 'proponent', as defined in s 3(1) of the Act, of the Proposal.
When the Minister referred the Proposal to the Authority, the area of land for the Precinct had not been chosen. At that time, 43 possible locations were being considered.
On 9 April 2008, the Authority decided to assess the Proposal as a 'strategic proposal', as defined in s 37B(2) of the Act.
On 14 April 2008, the Authority gave notice of its decision to assess the Proposal to various decision‑making authorities under s 39A(3)(c) of the Act, including the Department of Environment and Conservation for Western Australia.
Numerous possible sites for the Precinct were evaluated. On 23 December 2008, the Premier and Minister for State Development announced that the preferred location for the Precinct was an area of land within the Shire of Broome known generally as James Price Point.
By an application dated 25 May 2010, the second respondent, Woodside Energy Ltd (Woodside), applied to the first respondent, the Director General of the Department of Environment and Conservation for Western Australia (Director General) under s 51E(1) of the Act for a permit (Clearing Permit) authorising it to clear native vegetation from land at James Price Point.
The purpose of the Clearing Permit was described in Woodside's application as:
Onshore site investigations to develop approvals documentation and to inform the design of a proposed Browse Liquid Natural Gas Precinct.
The proposed method of clearing, as described in the application, was:
Removal of native vegetation to provide suitable access and working areas for onshore site investigations. Topsoil to be removed and vegetation mulched for future rehabilitation.
Woodside is the operator of a joint venture which is contemplating a project that will involve the extraction of natural gas from the Browse Basin and its subsequent liquefication, processing and storage in facilities to be constructed at James Price Point.
On 30 July 2010, the Director General, by his delegate, granted the Clearing Permit to Woodside pursuant to s 51E(5) of the Act. The Clearing Permit authorises the clearing of native vegetation (up to a total of 25 ha) from land at James Price Point.
After the Clearing Permit was granted, the plaintiff, Mr Roe, and other people lodged appeals against the grant to the third respondent, the Minister for Environment for Western Australia (Minister for Environment). On 7 December 2010, the Minister dismissed the appeals.
A more detailed account of the background facts and circumstances is set out in the proposed reasons for decision of Martin CJ, with whom Murphy JA has expressed his agreement. It is unnecessary to reproduce that account.
The critical issue in the proceedings
Mr Roe has applied, by an amended originating motion, for prerogative and declaratory relief on two grounds.
First, Mr Roe alleges that the Director General made a jurisdictional error in failing to address and determine whether:
(a)the Proposal was itself a 'significant proposal', as defined in s 37B(1) of the Act, in circumstances where Woodside's application for the Clearing Permit was related to the Proposal; and
(b)if the Proposal was itself a 'significant proposal', whether any 'decision‑making authority' was precluded by s 41 of the Act from making any decision which could have the effect of causing or allowing the Proposal to be implemented.
Secondly, and in the alternative to the first ground, Mr Roe alleges that, by reason of s 51F(1)(a) of the Act, the Director General was prohibited from granting the Clearing Permit under s 51E(5) of the Act in that the Proposal was itself a 'significant proposal' in circumstances where the application for the Clearing Permit was related to the Proposal and one or more decision‑making authorities were precluded by s 41 of the Act from making any decision which could have the effect of causing or allowing the Proposal to be implemented.
The critical issue in the proceedings is whether the Proposal was solely or partly a 'significant proposal' or whether it comprised, relevantly, a 'strategic proposal'.
If the Proposal comprised, relevantly, a 'strategic proposal', then s 41 of the Act did not apply to it (s 40B(1)) and, in consequence, s 51F was not engaged.
If, however, the Proposal was solely or partly a 'significant proposal', then s 41 prevented 'decision‑making authorities' who had been notified of the Proposal from making a decision that could have the effect of causing or allowing the Proposal to be implemented and, in consequence, s 51F prevented the Director General from granting the Clearing Permit.
The Authority's treatment of the Proposal as a strategic proposal only, does not, of course, determine the Proposal's true character. The correct characterisation of the Proposal depends on the application of the relevant provisions of the Act, properly construed, to the particular facts and circumstances.
In summary, the existence of the Director General's power to grant the Clearing Permit depends on whether the Proposal was in fact solely or partly a 'significant proposal' or whether it comprised, relevantly, a 'strategic proposal'.
The material provisions of the Act
The material provisions of the Act, for the purposes of these proceedings, are as follows.
The object of the Act is to protect the environment of the State, having regard to the principles set out in s 4A. In general, the Act prohibits pollution, certain emissions, environmental harm and the clearing of native vegetation unless authorised by or under the Act. The Act establishes procedures under which authorisation can be sought.
The term 'environment' is defined, in s 3(1), as follows:
[S]ubject 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, 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:
[T]he person who or which is responsible for the proposal, or the public authority on which the responsibility for the proposal is imposed under another written law.
The term 'public authority' is defined, in s 3(1), to mean:
[A] Minister of the Crown acting in his official capacity, department of the Government, State agency or instrumentality, local government or other person, whether corporate or not, who or which under the authority of a written law administers or carries on for the benefit of the State, or any district or other part thereof, a social service or public utility.
The term 'decision‑making authority' is defined, in s 3(1), to mean:
[A] public authority empowered by or under ‑
(a)a written law; or
(b)any agreement ‑
(i)to which the State is a party; and
(ii)which is ratified or approved by an Act,
to make a decision in respect of any proposal and, in Division 2 of Part IV, includes, in relation to a particular proposal, any Minister prescribed for the purposes of this definition as being the Minister responsible for that proposal.
Part IV is headed 'Environmental impact assessment' and comprises ss 37B ‑ 48J. It contains provisions relating to, relevantly, the referral and assessment of proposals, and the implementation of proposals. Environmental impact assessment is initiated by the written referral of a proposal to the Authority. This assessment is directed at two kinds of proposal, namely, significant proposals and strategic proposals.
The terms 'significant proposal' and 'strategic proposal' are defined in s 37B, which reads:
(1)In this Division ‑
significant proposal means a proposal likely, if implemented, to have a significant effect on the environment;
strategic proposal has the meaning given by subsection (2).
(2)A proposal is a strategic proposal if and to the extent to which it identifies ‑
(a)a future proposal that will be a significant proposal; or
(b)future proposals likely, if implemented in combination with each other, to have a significant effect on the environment.
By s 38(1), relevantly, any person may refer a 'significant proposal' to the Authority. By s 38(3), relevantly, only the proponent of a 'strategic proposal' may refer the proposal to the Authority.
In Commissioner for Equal Opportunity v ADI Ltd [2007] WASCA 261(S), this court dismissed an appeal brought by the Commissioner for Equal Opportunity, the Trades and Labour Council of Western Australia and Western Australians for Racial Equality Inc from a decision of the State Administrative Tribunal granting exemptions to the first respondent and others pursuant to s 135 of the Equal Opportunity Act 1984 (WA). The appellant submitted that the court should not follow the usual practice whereby costs are ordered to follow the event. They submitted that the appeal was appropriately to be categorised as 'public interest litigation', although they accepted that there is no special costs regime applicable to litigation characterised in that manner. Martin CJ, Wheeler and Pullin JJA ordered that the appellants pay the respondents' costs of the appeal to be taxed. Their Honours said:
Although the primary issue ventilated in the appeal, being the construction of the Equal Opportunity Act, has a facet which could be characterised as giving rise to an issue which impacts upon the public interest, the proper interpretation of legislation of general application could almost always be characterised in the same way. In our opinion, the issue of statutory interpretation which was raised by the appellants was not special or out of the ordinary, nor unusually complex, difficult or important, nor did it have any characteristic which differentiates it from similar issues of statutory interpretation which are commonly raised in appeals.
Nor does the first appellant's role as a statutory office holder with an interest in the interpretation and application of the statute in question differentiate this case in any way from a large number of other appeals heard by the Court. And the fact that the point of interpretation had not previously been determined by a superior court is another commonplace feature of appeals concerning the interpretation of statutes, and which does not provide any justification for departing from the normal rules in respect of costs.
Accordingly, for these reasons, the submissions made by the appellants in respect of the nature of the issues raised by the appeal and their particular roles in relation to those issues do not persuade us to depart from the normal practice of the Court in respect of costs [11] ‑ [13].
In Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) [No 2] [2008] WASCA 109(S), the respondents were unsuccessful in the appeal and on their notice of contention before this court. They submitted, nevertheless, that the court should not follow the ordinary rule that the successful litigant should be awarded its costs. They advanced two reasons. First, the appeal was 'public interest litigation' sufficient to warrant the appellant being deprived of its costs. The public interest elements were said to be the interpretation of legislation protecting the public interest, being the creation and regulation of the Fidelity Fund under the Real Estate and Business Agents Act 1978 (WA), and the fact that the appellant was a publicly funded body required to administer the Fidelity Fund. Secondly, the respondents claimed that the appellant 'elected' and exercised a 'discretion' to avail itself of a technical legal defence to block the respondents' otherwise valid claim.
This court (Steytler P, McLure & Pullin JJA) was not satisfied that the circumstances justified a departure from the ordinary rule as to costs. They also noted that the second reason advanced on behalf of the respondents involved a misstatement of the court's reasons in the appeal.
Decisions of other intermediate courts of appeal
In Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229, Black CJ and French J observed, correctly in my respectful opinion, that the true issue in Oshlack was whether the subject matter, scope and purpose of the statute conferring the power to award costs in that case was such that the considerations to which Stein J had regard were extraneous to any object the Parliament had in view in enacting it [21]. Their Honours continued:
The Full Court of the Federal Court in Friends ofHinchinbrook Society Inc v Minister for the Environment (No 5) (1998) 84 FCR 186 put it another way when it identified the entitlement of the Court of Appeal of New South Wales to disturb the discretionary decision of the trial judge as the issue decided in Oshlack: The decision of the High Court, it was said, ' … does not lay down a rule for application in other cases in the making of costs orders' (at 188) [21].
Black CJ and French J suggested that the term 'public interest' may best be seen as 'an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event' [14].
Where an appeal raises a novel question of substantial general importance and some difficulty, the appellate court may decline to order costs against the unsuccessful appellant. See Ruddock [28]; Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 [12] (Black CJ, Moore & Emmett JJ).
The fact that an unsuccessful appellant sought no financial gain from the proceedings is not, of itself, sufficient reason for departing from the usual order as to costs. See Ruddock [18]; Save the Ridge [15].
Also, the fact that an association's objects have a 'public interest nature' and in consequence there is an absence of potential financial gain from the litigation has not, at least generally, been a sufficient reason to depart from the ordinary rule as to costs. See Save the Ridge [15].
In Save the Ridge, Black CJ, Moore and Emmett JJ rejected the appellant's submission that the extended standing provisions in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) under consideration in that case showed an intention to increase the opportunity for public participation in environment and planning decisions 'such as to encourage a departure from the general rule that costs follow the event'. Their Honours said:
This submission is inconsistent with the approach taken by Branson J in Booth v Bosworth [2001] FCA 1718 and by the Full Court in Friends of Hinchinbrook Society Inc v Minister for the Environment(No 5) (1998) 84 FCR 186; [1998] FCA 432. It is not supported by the decision of the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72; 152 ALR 83; [1998] HCA 11. In that case, only Kirby J considered that the wide standing provisions of the Environmental Planning and Assessment Act 1979 (NSW) had a relevance to the question of costs, stating (at [134]):
'Given that statutory context and the clear purpose of parliament to permit, and even encourage, individuals and groups to exercise functions in the enforcement of environmental law before the Land and Environment Court, a rigid application of the compensatory principle in costs orders would be completely impermissible. It would discourage, frustrate or even prevent the achievement of parliament’s particular purposes.'
By contrast McHugh J said (at [89]):
'Under wide standing provisions … applicants are simply given enhanced access to restrain or remedy breaches of the law by respondents. Since the respondent is already expected to comply with the law, giving a member of the public a right to ensure that the respondent has so complied causes no relevant prejudice to the respondent.'
Although McHugh J was in the minority in the outcome of Oshlack, Gaudron and Gummow JJ similarly dealt with the concept of 'public interest litigation' only in so far as it was relevant to distinguishing Latoudis v Casey (1990) 170 CLR 534; 97 ALR 45, and not in relation to the statutory framework from which it had come. (For a discussion of this aspect of the decision in Oshlack, see K Edwards, 'Costs and Public Interest Litigation After Oshlack v Richmond River Council' (1999) 21 Syd LR 680, at 686 ‑ 90) [17] ‑ [19].
See also Fisse v Secretary, Department of the Treasury (No 2) [2008] FCAFC 200; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157.
In the present case, what order should be made as to costs?
In my opinion, there is insufficient reason in the present case to depart from the general rule that the successful party to the proceedings should be awarded costs. This case is not a 'rarity' of the kind contemplated by the Full Court in South‑West Forests and Buddhist Society. I would order that Mr Roe pay the costs of the respondents in the Woodside proceedings and the Commissioner of Main Roads proceedings, including reserved costs, to be taxed. My reasons are as follows.
First, although O 66 r 1(1) states the general rule as to costs, the general rule does not limit the general discretion conferred on the court. This general discretion must be exercised by reference to the facts and circumstances of each particular case.
Secondly, there are no special rules as to costs which apply to so‑called 'public interest' litigation. In Oshlack, the High Court did not enunciate a rule as to costs which is applicable generally in 'public interest' litigation cases.
Thirdly, although there are no special rules as to costs which apply to 'public interest' litigation, considerations relating to the 'public interest' may, in a particular case, be relevant to whether there should be a departure from the general rule. But the general discretion conferred on the court must not be exercised in relation to 'public interest' litigation in an unprincipled or idiosyncratic manner. As Kirby J noted in Oshlack, 'litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation' [134]. See also Botany Municipal Council v Secretary, Department of the Arts (1992) 34 FCR 412, 416 ‑ 417 (Gummow J).
Fourthly, litigation to protect the environment from injury will ordinarily be concerned more with public than with private rights, duties and interests. See Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, 155 (Mason ACJ). I accept that Mr Roe, in commencing and maintaining the proceedings, sought to enforce the provisions of the Act in relation to the granting of permits for the clearing of native vegetation, and that this was concerned with the enforcement of public rights, duties and interests. However, this feature does not (either alone or in combination with any other factors) justify a departure, in the present case, from the general rule as to costs.
Fifthly, the Woodside proceedings were decided against Mr Roe on a narrow ground, namely, that the Proposal was a 'strategic proposal'. It was not, either wholly or partly, a 'significant proposal'. At all material times, Mr Roe has been represented by senior counsel. Mr Roe's case on this ground was arguable but weak. Although the other issues raised on behalf of Mr Roe were of some importance in the proper construction and application of the Act, none of them was essential to the court's decision. The observations of Martin CJ (Murphy JA agreeing) in relation to these other issues were obiter dicta. They are not, with respect, binding on this court.
In his reasons for decision in the Woodside proceedings, Martin CJ (Murphy JA agreeing), said:
The conclusion that the proposal referred to the EPA by the Minister for State Development was a 'strategic proposal' only, which did not include any existing proposal which could be characterised as a 'significant proposal', is fatal to Mr Roe's case. That is because he accepts, through his counsel, consistently with the evidence, that no other proposal was ever referred to the EPA under s 38 of the Act [75]. (emphasis added)
A little later, his Honour noted:
The views I have already expressed are sufficient to dispose of Mr Roe's claim. However, out of deference to the arguments presented, I will continue with the factual narrative, and address some of those arguments [79].
Further, the determination by this court of the narrow ground on which the Woodside proceedings were decided against Mr Roe was based predominantly on the application of the decisions of the Full Court of the Supreme Court of Western Australia in ReEnvironmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310 and in Greendene Development Corporation Pty Ltd v Environmental Protection Authority [2003] WASCA 242; (2003) 28 WAR 107 and of this court in Re Minister for Environment; Ex parte Elwood [2007] WASCA 137; (2007) 154 LGERA 366 to the facts and circumstances of the present case.
Sixthly, this court's decision in the Commissioner of Main Roads proceeding turned on two points. The first was identical to the narrow ground in the Woodside proceedings which I have discussed at [98] ‑ [101] above. The second concerned whether Mr Roe was a person who had, in the Director General's opinion (through his delegate), a direct interest in the subject matter of the application for the Main Roads Clearing Permit, but was not invited to comment on the application as required by s 51E(4) of the Act. This point involved, primarily, matters of fact. See Martin CJ's reasons (Murphy JA agreeing) [35] ‑ [52]. The other issues raised on behalf of Mr Roe were not essential to the court's decision. Any observations made by Martin CJ (Murphy JA agreeing) in relation to them were obiter dicta and, with respect, not binding on this court.
Seventhly, any issue of statutory interpretation that was raised by Mr Roe and which it was necessary to decide was not of particular public importance or unusually complex. There is nothing that relevantly differentiates the present case from other cases, in the context of administrative law or in which the State or a State instrumentality or agent is a party, where issues of statutory interpretation frequently arise.
Eighthly, in the present case there is no special provision as to costs of the kind with which Oshlack was concerned. Also, in the present case there is no object in the Act which is comparable to that contained in s 5(c) of the Environmental Planning and Assessment Act.
Further, a provision of the kind embodied in r 4.2(1) of the Land and Environment Court Rules 2007 (NSW), which formed the basis of the decision in Anderson v New South Wales Minister for Planning (No 2) [2008] NSWLEC 272; (2008) 163 LGERA 132, has no counterpart in the present case. By r 4.2(1), the court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.
Ninthly, although any person who disagrees with a decision to grant a clearing permit under s 51E(5) of the Act has standing, pursuant to s 101A(4), to lodge an appeal with the Minister against the decision, this provision does not (either alone or in combination with any other factors) justify a departure, in the present case, from the general rule as to costs. The encouragement of litigation is not an object of the standing provision. Anyway, the present dispute as to costs would not arise unless Mr Roe had standing to commence the proceedings. See Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 900 [8] (Heerey J); Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts (No 2) [2009] FCA 466 [8] (Tracey J).
Tenthly, Mr Roe commenced and maintained the proceedings in his own name. I accept, however, that, as asserted in his affidavit evidence, he brought his claims in his capacity as a 'law boss' of the Aboriginal people who are the traditional owners of the land at James Price Point. See also Roe v The State of Western Australia [No 2] [2011] FCA 102 (the Federal Court proceedings). However, Mr Roe's status as a 'law boss' is insufficient (either alone or in combination with any other factors) to justify a departure, in the present case, from the general rule as to costs.
Further, Mr Roe was recently removed in the Federal Court proceedings as a representative applicant of the Goolarabooloo and Jabirr Jabirr people for the purposes of certain proceedings under the Native Title Act 1993 (Cth). The disagreements within the group are referred to in the reasons for decision [9] ‑ [10].
This disagreement undermines Mr Roe's reliance upon the interest which the group has in the protection of its cultural values. Also, it is unclear on the evidence before this court that the group as a whole shares Mr Roe's assessment of the effect of the Woodside Clearing Permit and the Main Roads Clearing Permit on those values.
The proceedings were not without significance for Mr Roe personally as a member of the Aboriginal group who are the traditional owners of the land in question.
Eleventhly, the fact that Mr Roe brought the proceedings for reasons other than personal or financial gain is insufficient (either alone or in combination with any other factors) to justify a departure, in the present case, from the general rule as to costs.
Twelfthly, Mr Roe's capacity to satisfy an order as to costs is irrelevant in determining whether an order should be made. See Scott v Secretary, Department of Social Security [2000] FCA 1450 [4] (Beaumont & French JJ); Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1106 [14] ‑ [15] (North J); Lawyers for Forests [17]. Similarly, the fact that the respondents have deep pockets and, presumably, reasonably long arms is irrelevant.
Thirteenthly, the evidence before this court does not support Mr Roe's submission that his concern about the proper assessment process was shared with a broad segment of the Australian public.
It must be emphasised that the Woodside proceedings and the Commissioner of Main Roads proceedings were concerned merely with clearing permits for the purpose of:
(a)'onshore site investigations to develop approvals documentation and inform the design of a proposed Browse Liquid Natural Gas Precinct', in the case of the Woodside proceedings; and
(b)'constructing a trace‑line associated with the James Price Point LNG Precinct', in the case of the Commissioner of Main Roads proceedings.
This court held that the Proposal was a 'strategic proposal', and not a 'significant proposal', for the purposes of the Act. The proceedings were not concerned with the scale of the possible development described in the scoping document or the joint Commonwealth/State assessment process. The Proposal did not involve the construction of a large plant for the processing of liquefied natural gas, and associated facilities. It did not, of itself, have important and enduring implications for the environment. As Martin CJ (Murphy JA agreeing) observed in his reasons for decision in the Woodside proceedings:
The evidence of the Woodside officers to which I have referred confirms that the purpose for which the permit was sought was to enable geotechnical and hydrological studies to be undertaken within the area of the proposed precinct. The geotechnical investigations are required to assist with engineering design works, which might influence the content and layout of the proposed facilities and infrastructure, and the environmental impact of those facilities. For example, data from hydrological bores is required to be fed into the assessment of the impact of water extraction on water reservoirs, which in turn would inform the engineering design by providing data on the water available. It is therefore clear that the purpose of the clearing permit was to facilitate development of the design of the plant which might possibly be constructed at some time in the future, if an investment decision is made, which design would inform the assessment of the environmental impact of any proposal to proceed with construction. Plainly, the clearing permit is not sought for the purpose of constructing the project itself, but for the purpose of the planning and assessment process [94]. (emphasis added)
There is nothing to suggest that any attention by the Australian media in relation to the proposal for a 'gas processing hub in the Kimberley' was directed to the approvals that were the subject of the Woodside proceedings and the Commissioner of Main Roads proceedings.
Fourteenthly, Mr Roe has been wholly unsuccessful in the proceedings.
Finally, I note that my opinion in relation to costs is a dissenting view. Martin CJ and Murphy JA would make no order as to the costs of the proceedings. It is unnecessary, in these circumstances, to consider whether an order should be made pursuant to cl 11(b) of the Schedule to the Determination, being a supplementary order sought by Woodside and the Commissioner of Main Roads.
- AGLC
- Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57
- Case
- [2011] WASCA 57
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case revolved around the classification of the proposed project and the interpretation of the relevant statutory provisions. Specifically, the court needed to determine whether the proposed project was a'significant proposal' under the Environmental Protection Act 1986 (WA) and whether the clearing permit granted was 'related to' the proposal. Additionally, the court had to consider whether the clearing permit was prohibited by section 51F of the Act.
The court found that the proposed project was indeed a 'significant proposal' and not solely a'strategic proposal', as it had both strategic and significant environmental impacts. The court held that the clearing permit granted was 'related to' the proposal and therefore prohibited under section 51F of the Environmental Protection Act 1986 (WA). Consequently, the court quashed the decision to grant the clearing permit and set aside the decision of the Environmental Protection Authority to assess the proposal as a 'strategic proposal'.
The final orders of the court were that the decision to grant the clearing permit was quashed, and the decision of the Environmental Protection Authority to assess the proposal as a'strategic proposal' was set aside. The matter was remitted back to the Environmental Protection Authority for reconsideration in light of the court's findings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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