Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [No 2]
[2011] WASCA 58
•15 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ROE -v- THE DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION FOR THE STATE OF WESTERN AUSTRALIA [No 2] [2011] WASCA 58
CORAM: MARTIN CJ
BUSS JA
MURPHY JA
HEARD: 31 JANUARY 2011
DELIVERED : 15 MARCH 2011
FILE NO/S: CIV 2899 of 2010
BETWEEN: JOSEPH ROE
Plaintiff
AND
THE DIRECTOR GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION FOR THE STATE OF WESTERN AUSTRALIA
First RespondentREECE WALDOCK, COMMISSIONER OF MAIN ROADS
Second Respondent
Catchwords:
Environment and planning - Environmental impact assessment and approval generally
State and Commonwealth governments agreed to assess the impact of a plan to designate land as liquefied natural gas processing precinct - Plan referred to Environmental Protection Authority by State for assessment - Authority determined to assess as 'strategic proposal'
Delegate of first respondent granted second respondent clearing permit to establish a trace line relating to possible construction of access road to proposed gas processing precinct - Applicant challenged grant on basis that proposal a 'significant proposal' and not a strategic proposal and that grant of permit prohibited under s 51F of Environmental Protection Act 1986 (WA)
Whether proposal solely or partly a 'significant proposal' - Turns on decision in CIV 2658 of 2010 - Whether clearing permit 'related to' proposal
Applicant also challenged grant of permit on basis that applicant had direct interest in subject matter of application, that invitation to comment required under s 51E of Environmental Protection Act 1986 (WA) and that this invitation not given
Whether officer of second respondent formed opinion that applicant had direct interest in subject matter of application for permit
Legislation:
Environmental Protection Act 1986 (WA)
Environmental Protection Amendment Act 2003 (WA)
Main Roads Act 1930 (WA)
Native Title Act 1993 (Cth)
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 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 : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57
MARTIN CJ:
Introduction
The applicant, Mr Joseph Roe, seeks to set aside a clearing permit granted by the first respondent, the Director General of the Department of Environment and Conservation for the State of Western Australia (the CEO), through his delegate, to the second respondent who is the Commissioner of Main Roads.
Mr Roe asserts that the decision to grant the clearing permit should be set aside for two reasons:
(1)The CEO was prohibited from granting the clearing permit by reason of s 51F of the Environmental Protection Act 1986 (WA) (the EP Act) because the application for the clearing permit was related to a proposal which had been referred to the Environmental Protection Authority (the EPA) under the EP Act for the development of a multi‑user gas hub precinct in the vicinity of James Price Point, and one or more decision‑making authorities were precluded by s 41 of the EP Act from making any decision that could have the effect of causing or allowing that proposal to be implemented; and
(2)Mr Roe was a person who had, in the opinion of the CEO (through his delegate) a direct interest in the subject matter of the application for the clearing permit, but who had not been invited to comment upon it as required by s 51E of the EP Act.
The Woodside proceedings
These proceedings are closely related to the proceedings in CIV 2658 of 2010, in which Mr Roe seeks to set aside a clearing permit granted by the CEO to Woodside Energy Ltd (the Woodside proceedings). The two proceedings were heard together, and much of the evidence in the Woodside proceedings is relevant to, and was received in these proceedings. The parties were represented by the same solicitors and counsel in each proceeding, although in the Woodside proceedings there was, of course, an additional party which was separately represented.
The issues raised by the first ground which I have set out above are identical to the issues raised in the Woodside proceedings in all respects but one (which I will address below). The issues raised by the second ground above are specific to these proceedings.
The reasons of the court in the Woodside proceedings will be published at the same time as these reasons. I adopt, without repeating, the reasons I have given in those proceedings to the extent that they are relevant to these proceedings (which is in all respects, save for issues which are peculiar to the purpose and terms of the Woodside clearing permit).
The facts
I adopt all findings of fact enunciated in the reasons I have given in the Woodside proceedings, save for those findings which are specific to the Woodside clearing permit. The additional facts which are relevant to these proceedings are as follows.
The Commissioner for Main Roads is an office created under the Main Roads Act 1930 (WA). The holder of that office has various responsibilities, conferred by that Act, with respect to the construction and maintenance of main roads throughout the State.
The state-wide clearing permit
In November 2005, the Commissioner was granted a clearing permit, pursuant to s 51E of the EP Act, authorising the clearing of native vegetation throughout the State, for certain specified purposes, including the construction of new roads, on specified terms and conditions. The Commissioner asserts that the clearing which he proposes is authorised by this permit, irrespective of the validity of the permit which is impugned in these proceedings. However, the validity of that assertion was not directly contested by the parties, and would only be relevant, perhaps, to some question of discretionary refusal of relief in the event that Mr Roe's claim is made out. Because I have concluded that Mr Roe has not made out his claim in these proceedings, it is unnecessary to give any further consideration to any issue arising in respect of the 2005 clearing permit.
Cape Leveque Road
Cape Leveque Road runs between Broome Road (which runs between Broome and Derby), and the settlement at Cape Leveque on the north‑western end of the Dampier Peninsula. Travelling north from Broome Road, the first 12.5 km of Cape Leveque Road is a sealed road, the next 87.5 km is unsealed, and the last 100 km is sealed. The general intention of Main Roads WA (an agency under the control of the second respondent), prior to any consideration being given to a gas hub precinct at James Price Point, was to upgrade the middle section of Cape Leveque Road by sealing it.
Access to James Price Point
Currently access to James Price Point can be obtained by travelling along Manari Road, which intersects Cape Leveque Road. Manari Road passes from Cape Leveque Road towards the coast, and then passes roughly parallel with the coast up to James Price Point.
In February 2010 the Department of State Development commenced discussions with Main Roads WA concerning the provision of an access road from Cape Leveque Road to the eastern boundary of the proposed gas hub precinct. As a result of that approach, Main Roads developed a plan for the possible construction of such a road, which would start from Cape Leveque Road at an intersection north of the current intersection with Manari Road, and travel more or less directly to the eastern boundary of the proposed precinct.
The planning and design process
Once a decision is made to consider constructing a road, Main Roads follows a five stage process leading up to the construction and handover of the road. The first stage, known as the 'assess phase', involves basic planning and risk assessments. This phase has been completed in relation to the road proposed to be constructed to the gas hub precinct.
The second stage of the process, known as the 'select phase', involves the preparation of a business case, a route review and an alignment selection report. After those documents have been prepared, they are reviewed and a decision is then made about whether or not to proceed with further planning for the road. In some cases, further exploratory and investigative work is required before that decision can be made. In relation to the proposed access road to the gas hub precinct, this stage is nearing completion.
If a decision is made to proceed, the next stage, known as the 'develop phase', involves preliminary road design and scope development. During this stage the scope of the project and relevant requirements, such as intersections, floodway crossings and bridge locations are identified, and more detailed consideration is given to the road than has been given at the earlier stages. Studies into environmental and aboriginal heritage issues are also undertaken as part of this stage. At the completion of this stage, once again the proposal is reviewed, and a decision is made as to whether or not to continue with the construction of the road.
If the decision is made to continue, the fourth stage, known as the 'delivery phase', involves the final design and construction of the road. Once that phase is completed, the final stage, known as the 'operations phase', involves the handover of the road, including the preparation of a report which details the ongoing attributes and maintenance requirements for the road.
Planning for the access road
As I have noted, Main Roads is currently in the second stage of the process relating to the possible construction of the access road to the proposed gas hub precinct. As part of that process, a report reviewing the route and recommending the alignment of the road was commissioned and completed in September 2010. That report considers a number of possible routes and alignments.
Because of possible timing constraints, Main Roads has also commissioned studies into environmental and aboriginal heritage issues, which would normally not be undertaken until the third phase of planning has been reached. The purpose of those studies is to enable adjustment of the alignment of the road to avoid any significant issues that are identified. So, for example, if there is a significant aboriginal site, midden or ochre deposit then the alignment of the road can be adjusted to avoid it.
The trace line
For the purpose of conducting preliminary environmental and technical investigations, and with a view to obtaining the necessary environmental approvals, Main Roads proposes to clear a trace line for the access road. The trace line will generally follow the proposed alignment for the road, and will be 19 km long and up to 4 m wide. The trace line will of course be much narrower than the proposed road, which will probably having a clearing width of between 20 m ‑ 25 m.
The purpose of the trace line is to confirm any geotechnical, survey, engineering and environmental aspects, including any aboriginal heritage issues. To date, studies on these subjects have been conducted using low flying helicopters or limited excursions on foot. The purpose of the trace line is to enable greater access through the use of four‑wheel drive vehicles travelling along the trace line. The trace line will be established by clearing native vegetation and disturbing up to 100 mm of the topsoil with a bulldozer. Any large trees (that is, greater than 20 cm in trunk diameter) will be left in place. Timber or vegetation removed to establish the trace line will be stockpiled to the side of the trace line for later use in the rehabilitation of disturbed areas.
The application for the clearing permit
On 12 August 2010, 'Main Roads WA' applied to the CEO for a clearing permit pursuant to s 51E of the EP Act. The purpose for which the clearing permit was sought was described on the application in the following terms:
To establish a trace line associated with the James Price Point LNG precinct. The trace line will enable further investigation of the following aspects:
(1)Environmental;
(2)Aboriginal heritage;
(3)Engineering;
(4)Geotechnical;
(5)Survey.
The area proposed to be cleared was an area 4 m wide and 19 km long, having an approximate area of 7.6 ha.
By letter dated 1 September 2010 an officer of the Department of Environment and Conservation wrote to the Chief Executive Officer of the Kimberley Land Council advising that the application had been lodged by Main Roads, and inviting comment on the proposal. A letter in identical terms was sent to the Goolarabooloo‑Jabirr Jabirr peoples care of the Kimberley Land Council. Notice of the application by Main Roads for a clearing permit was advertised in The West Australian on 6 September 2010, and was published on the website of the Department of Environment and Conservation.
During October of 2010, the Main Roads application was considered by Mr Matthew Warnock, an officer of the Department of Environment and Conservation who was acting in the position of manager, Native Vegetation Conservation Branch. The occupant of that office has the delegated authority of the CEO of the department to decide applications for clearing permits. Mr Warnock considered whether he was constrained by the EP Act from granting a clearing permit under s 41 or s 51F because a proposal for the hub gas precinct had been referred to the EPA. He concluded that he was not because the EPA had advised that the proposal was a strategic proposal. He then went on to consider whether all persons with a direct interest in the clearing permit application, and other interested parties had been consulted and given an opportunity to provide comment on the application, and whether any comments received had been considered and addressed. In an affidavit sworn in these proceedings, Mr Warnock deposes that he considered that each of the Kimberley Land Council and the Goolarabooloo‑Jabirr Jabirr peoples had a direct interest in the clearing permit application, and understood that the Kimberley Land Council represented the Goolarabooloo‑Jabirr Jabirr peoples. He considered that the interests of both the Kimberley Land Council and the Goolarabooloo‑Jabirr Jabirr peoples were very broad and included cultural and environmental interests. Mr Warnock also deposes that:
I recall that when reviewing the DEC files regarding Woodside Energy Limited's clearing application CPS 3771/1 I viewed a letter with the heading 'Goolarabooloo' and dated 28 June 2010 from Joseph Roe … From this letter I understood that Mr Roe was one of the Goolarabooloo‑Jabirr Jabirr peoples. I therefore thought that consulting or notifying Mr Roe would have been done by way of consulting and notifying the Goolarabooloo‑Jabirr Jabirr peoples and that the letter to the Goolarabooloo‑Jabirr Jabirr peoples … would have been viewed by Mr Roe.
Mr Warnock then considered the environmental values relating to the clearing permit application and in particular considered the impact of the clearing proposed against the 10 established clearing principles by which the department assesses such applications. He decided to grant the clearing permit subject to some changes and conditions. The relevant permit was signed by him on 14 October 2010. Notice of the grant of the permit was published in The West Australian on 18 October 2010, and also on the website of the Department of Environment and Conservation.
Mr Roe has deposed that on about 4 November 2010, an employee of the Kimberley Land Council gave him a copy of a letter dated 25 October 2010 from the Department of State Development to that council requesting cultural heritage clearances relating to the clearing of the trace line for the proposed access road. He deposes that prior to receiving this letter, he was not aware of any proposal to clear a trace line for the purpose of the proposed access road. That evidence is not contested, and there is no reason it should not be accepted. The following day Mr Roe asked his assistant to forward the letter to his solicitor, Ms Josie Walker, of the Environmental Defender's Office.
Ms Walker has provided an affidavit which has been received in evidence. She deposes that the letter to which I have referred was sent by Mr Roe's assistant to her office on 5 November 2010. However, because she was on leave between 5 ‑ 9 November inclusive, she did not see the letter until she returned to work on 10 November 2010. Over the ensuing weeks she undertook a number of enquiries to ascertain the position in relation to the status of the clearing permit, and ultimately ascertained what had previously occurred. By then, the period within which an appeal against the grant of the permit could be brought had well and truly expired. Pursuant to s 101A of the EP Act, that period is 21 days after the grant of the permit. As the permit was granted on 14 October 2010, that period expired on 5 November 2010, the day after Mr Roe received a copy of the letter to the Kimberley Land Council to which I have referred.
The Kimberley Land Council, on behalf of the Goolarabooloo‑Jabirr Jabirr peoples had lodged an objection to the grant of the clearing permit on 22 September 2010. On 8 November 2010 the Kimberley Land Council purported to lodge an appeal against the grant of the clearing permit. However, as I have noted, that appeal was out of time, and was rejected on that ground.
Was the CEO prohibited from granting the clearing permit under s 51F of the EP Act?
For the reasons which I have given in the Woodside proceedings, at the time the CEO, through his delegate, granted the clearing permit the subject of these proceedings, no 'significant proposal' (within the meaning of that term in the EP Act) had been referred to the EPA relating to the development of a multi‑user gas hub precinct in the vicinity of James Price Point. The only proposal that had been referred to the EPA concerning the development of a multi‑user gas hub precinct in the Kimberley was the 'strategic proposal' (within the meaning of that term in the EP Act) which had been referred to the EPA by the Minister for State Development under cover of a letter dated 25 March 2008. Because no significant proposal has ever been referred to the EPA in respect of the development of a gas hub precinct in the vicinity of James Price Point (as there is not, and never has been any such proposal falling within the meaning given to the expression 'significant proposal' by s 37B of the EP Act), no decision‑making authority has been precluded by s 41 of the EP Act from making any decision which could have the effect of causing or allowing any such proposal to be implemented. It follows that s 51F of the EP Act has never applied to prohibit the CEO from performing the duties imposed upon him in respect of the grant of a clearing permit to the second respondent.
In the Woodside proceedings, I went on to consider whether, on the hypothetical assumption that a significant proposal for the development of a gas hub precinct in the vicinity of James Price Point had been referred to the EPA, s 51F of the EP Act would have prevented the CEO from granting the Woodside clearing permit. On that assumption, I found that the Woodside clearing permit could not have had the effect of causing or allowing any such proposal to be implemented, with the result that it would not have been relevantly 'related to' such a proposal, and would not therefore have fallen within the scope of s 51F of the EP Act.
I will undertake the same process of reasoning in these proceedings. The first question to address is whether, on the assumption that a significant proposal for the development of the gas hub precinct in the vicinity of James Price Point had been referred to the EPA, the grant of the clearing permit sought by Main Roads WA could have the effect of causing or allowing that proposal to be implemented.
As I have noted, Main Roads WA sought the clearing permit in order to establish a trace line. The purpose of establishing the trace line is to enable more detailed assessment of the topographical, geotechnical, archaeological, and cultural heritage features of the currently proposed alignment of the road. Those assessments are to be undertaken prior to any final decision being made with respect to the construction of the road. If a decision is made to proceed with construction of the road, its alignment may, or may not, coincide with the trace line, depending upon the outcome of the assessments which are to be undertaken after the trace line has been established.
It would not be correct to characterise the establishment of the trace line as part of the work undertaken for the purpose of constructing the proposed road. Rather, the establishment of the trace line is properly characterised as work undertaken for the purpose of assessing and planning the construction of the proposed road. As no decision has yet been made to actually construct the road, or as to its alignment, the grant of the clearing permit is not a decision which could have the effect of causing or allowing the road to be constructed, much less any gas hub precinct to be established and developed.
It follows that even if a significant proposal for the establishment of a gas hub precinct in the vicinity of James Price Point had been referred to the EPA under s 38 of the EP Act (which there has not), the clearing permit sought by Main Roads WA would not be relevantly 'related to' that proposal, within the meaning of s 51F, so as to enliven any prohibition upon the grant of a clearing permit pursuant to the terms of that section.
Accordingly, the first ground upon which Mr Roe seeks to challenge the grant of the clearing permit to Main Roads WA must be rejected.
Was there a breach of the obligation to give notice?
If an application for a clearing permit is lodged which complies with the requirements of the EP Act, the CEO is obliged, pursuant to s 51E(4) to:
(a)advise the applicant that the application has been received;
(b)invite any public authority or person which or who has, in the opinion of the CEO, a direct interest in the subject matter of the application, to comment on it within such period as the CEO specifies; and
(c)advertise the application in the prescribed matter, inviting any person who wishes to comment upon it to do so within such period as is specified in the advertisement.
The evidence establishes that the CEO, by his delegate, complied with the obligations imposed by pars (a) and (c). However, Mr Roe asserts that the CEO failed to comply with the obligation posed by par (b). He asserts that the CEO, by his delegate, in fact formed the opinion that he was a person who had a direct interest in the subject matter of the application, but failed to invite him to comment on it.
In order to make good the assertion that the CEO failed to comply with the obligation imposed by s 51E(4) of the EP Act, it is necessary for Mr Roe to establish that:
(a) the CEO, by his delegate, formed the opinion that he had a direct interest in the subject matter of the application; and
(b) the CEO failed to invite him to comment on the application.
It is significant to note that Mr Roe does not assert that the CEO breached any duty to form an opinion that he was a person with a direct interest in the subject matter of the application. Rather, his case is put on the basis that the CEO, by his delegate, did in fact form the opinion that he was such a person.
Did the CEO, by his delegate, form the requisite opinion?
Mr Roe relies upon the affidavit of the delegate of the CEO, Mr Warnock, to which I have referred, in order to make good the proposition that the opinion was formed that he was a person with a direct interest in the subject matter of the application. He relies in particular on the paragraph of that affidavit which I have set out in full above. However, that paragraph does not establish that Mr Warnock formed the view that Mr Roe had an interest which was separate and distinct from the interest which he shared in common with all the Goolarabooloo‑Jabirr Jabirr peoples. To the contrary, it is clear from that paragraph that Mr Warnock's view was that Mr Roe was a member of that group, and had an interest in common with all other members of that group. That is clear from the last two sentences of the paragraph.
That conclusion is not altered by Mr Warnock's observation that the view which he formed was derived from his recollection of viewing a letter dated 28 June 2010 from Mr Roe to the department concerning the Woodside clearing permit. That letter is in evidence. It is headed Goolarabooloo, connoting that the letter was written on behalf of a group. The description of the capacity in which Mr Roe signed the letter is stated at its foot - namely:
Senior Law Boss and Law Keeper
Goolarabooloo‑Jabirr Jabirr NTCG [Native Title Claimant Group]
The text of the letter also indicates that Mr Roe was writing in his capacity as a native title claimant for the area including James Price Point and as 'a law boss for the Northern Tradition, entitled under traditional law to speak for the country where this clearing is proposed to take place'. It is possible then that these assertions might have caused Mr Warnock to form a view that Mr Roe had an interest separate and distinct from that of the people he claimed to represent, arising from his asserted capacity as a 'law boss'. However, Mr Warnock does not say that he formed that view in his affidavit, nor was he required to attend for cross‑examination on his affidavit. The possibility that Mr Warnock formed such an opinion remains a mere possibility, which has not been established by the evidence.
Accordingly, the evidence establishes that the person or persons who were considered, in the opinion of the CEO, through his delegate, Mr Warnock, to have a direct interest in the subject matter of the application, was the group which comprised the members of the Goolarabooloo‑Jabirr Jabirr people, of whom Mr Roe was one.
Was the required invitation to comment given?
As I have noted, by letters dated 1 September 2010, an officer of the Department of Environment and Conservation gave notice to each of the Kimberley Land Council, and the Goolarabooloo‑Jabirr Jabirr peoples care of the Kimberley Land Council, of the application that had been made by Main Roads WA for a clearing permit. Each letter invited comments by 22 September 2010.
By letter dated 22 September 2010 on the letterhead of the Kimberley Land Council, an objection was lodged to the grant of the clearing permit. The letter recited that the Kimberley Land Council acted on behalf of the Goolarabooloo‑Jabirr Jabirr native title groups, and asserted that those groups held native title over the area the subject of the application for the clearing permit. The letter recites that the Goolarabooloo‑Jabirr Jabirr people had instructed the Kimberley Land Council to file a submission objecting to the grant of the permit based on a number of grounds, which are spelt out in the letter.
As I have noted, Mr Warnock's evidence was to the effect that he formed the opinion that the Goolarabooloo‑Jabirr Jabirr people, as a group, had an interest in the subject matter of the application for the clearing permit. Notice was given to that group through the Kimberley Land Council. A submission in opposition to the application for the clearing permit was presented by the Kimberley Land Council on behalf of the Goolarabooloo‑Jabirr Jabirr peoples. There is no reason to suppose that the Kimberley Land Council was not properly instructed to do so, or that the submission does not represent the collective views of the Goolarabooloo‑Jabirr Jabirr people.
In the terms of s 51E(4) of the EP Act, the group of people who, in the opinion of the CEO (by his delegate), had a direct interest in the subject matter of the application were invited to comment on it and provided their comments within the time specified in the invitation. There is therefore no basis upon which it can be asserted that the statutory provision was not complied with.
The outcome is no different if viewed specifically from the perspective of Mr Roe. Mr Roe was at all material times, one of the named applicants in the native title claim that has been brought on behalf of the Goolarabooloo‑Jabirr Jabirr peoples, and which covers the area the subject of the clearing permit granted to Main Roads WA. As such, it can be inferred that Mr Roe is a person or persons who was authorised by all of the members of that group to commence and maintain that claim on their behalf (s 61, Native Title Act 1993 (Cth) (Native Title Act)).
The solicitors on the record in respect of the native title claim to which I have referred are, and have at all material times been, the Kimberley Land Council. Accordingly, those solicitors are the agents of the claimants, including Mr Roe, for all purposes associated with the claim.
Section 24MD(6A) of the Native Title Act provides that any registered native title claimants have the same procedural rights in relation to the claim as they would have on the assumption that they held ordinary title to the land, in respect of any future act to which that section applies. Pursuant to s 24MB of the Native Title Act, the grant of a clearing permit would be a 'future act' falling within the scope of s 24MD(6A). Accordingly, the effect of s 24MD is to confer upon Mr Roe the same procedural rights he would have if he held ordinary title to the land the subject of the application for the clearing permit. Section 253 of the Native Title Act defines the expression 'procedural right' to include a right to be notified of the future act, or a right to object to the future act.
Accordingly, by reason of the provisions of the Native Title Act to which I have referred, Mr Roe enjoyed the same procedural rights, including the right to notice of, and to object to the application for the clearing permit as if he had been the owner of ordinary title to the land the subject of the application. If Mr Roe had been the holder of ordinary title to the land the subject of the application, plainly he would have been a person in respect of whom the CEO must have formed an opinion that he had a direct interest in the application, and he would therefore have been entitled to notice, and to the opportunity to object to the grant of the application.
It follows that Mr Roe's entitlement to notice of the application for the clearing permit, and the opportunity to object to it is a matter falling within the scope of his status as a registered applicant under the Native Title Act, and therefore a matter falling within the scope of authority of the solicitors appointed to pursue that claim on his behalf, namely, the
Kimberley Land Council. Accordingly, the Kimberley Land Council were Mr Roe's agents, for the purpose of receiving the letter dated 1 September 2010, which invited the making of a submission with respect to the application for the clearing permit by Main Roads WA. There is nothing in the EP Act which would prevent the CEO performing the obligation to invite those with a direct interest in the subject matter of the application to make a submission through their duly appointed agent, and every reason to conclude that the Kimberley Land Council were Mr Roe's duly appointed agent for that purpose. This analysis provides another reason for concluding that there has been no breach of the obligation to invite comment from those with a direct interest in an application for a clearing permit imposed upon the CEO by s 51E(4) of the EP Act.
If it was concluded, contrary to my view, that there had been a breach of the obligation imposed by s 51E(4) of the EP Act, a number of subsidiary questions would arise, including the legal effect of any such breach, the relief appropriately granted as a consequence of such a breach, and whether there were any discretionary grounds upon which relief should be refused, in the circumstances which I have set out above. However, because I have concluded that no breach of s 51E(4) has been established, it is unnecessary to consider those issues.
Conclusion
For these reasons, Mr Roe's claims should be dismissed.
BUSS JA: These reasons should be read together with my reasons in Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (the Woodside proceedings).
In these proceedings, the plaintiff, Mr Roe, seeks to set aside a clearing permit (the Clearing Permit) granted by the first respondent, the Director General of the Department of Environment and Conservation for Western Australia, by his delegate, to the second respondent, the Commissioner of Main Roads for Western Australia pursuant to s 51E(5) of the Environmental Protection Act 1986 (WA) (the Act).
Mr Roe relies on two grounds for his assertion that the grant of the Clearing Permit should be set aside.
First, Mr Roe alleges that the Director General was prohibited from granting the Clearing Permit because the State Government's plan for 'a multi‑user LNG hub to process the gas resources in the Browse Basin' (the
Proposal) was itself a 'significant proposal' under the Act 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.
Secondly, Mr Roe alleges that he was a person who had, in the opinion of the Director General (through his delegate), a direct interest in the subject matter of the application for the Clearing Permit, but he was not invited to comment on the application as required by s 51E(4) of the Act.
The merits of the first ground
For the reasons I have given in the Woodside proceedings, I am of the opinion that the Proposal was not, either wholly or partly, a 'significant proposal', as defined in s 37B(1) of the Act. The Proposal comprised, relevantly, a 'strategic proposal', as defined in s 37B(2) of the Act. It follows that decision‑making authorities were not precluded by s 41 of the Act from making any decision that could have the effect of causing or allowing the Proposal to be implemented. Accordingly, the Director General was not prohibited by s 51F of the Act from granting the Clearing Permit to the Commissioner of Main Roads. Mr Roe's first ground fails.
The merits of the second ground
I agree with Martin CJ, for the reasons he gives, that Mr Roe's second ground is without merit.
Conclusion
Mr Roe's claim should be dismissed.
MURPHY JA: I agree with the Chief Justice.
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