Save Beeliar Wetlands (Inc) v Jacob - [2015] WASC 482

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SAVE BEELIAR WETLANDS (INC) -v- JACOB [2015] WASC 482

CORAM: MARTIN CJ

HEARD: 30 NOVEMBER 2015

DELIVERED : 16 DECEMBER 2015

FILE NO/S: CIV 2445 of 2015

BETWEEN: SAVE BEELIAR WETLANDS (INC)
First Applicant
CAROLE DE BARRE
Second Applicant
AND
THE HON ALBERT JACOB MLA, MINISTER FOR ENVIRONMENT
First Respondent
ENVIRONMENTAL PROTECTION AUTHORITY OF WESTERN AUSTRALIA
Second Respondent
COMMISSIONER OF MAIN ROADS WESTERN AUSTRALIA
Third Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervenor

Catchwords:

Administrative law - Judicial review - Jurisdictional error - Whether decision-maker asked itself the correct questions under the Environmental Protection Act 1986 (WA) - Whether condition recommended by decision-maker inconsistent with decision-maker's reasons

Administrative law - Judicial review - Failure to take into account a mandatory relevant consideration - Decision-maker failed to take into account its own published policies - Decision-maker's own published policies a mandatory relevant consideration due to subject matter, scope and purpose of Environmental Protection Act 1986 (WA)

Administrative law - Judicial review - Failure by decision-maker to provide adequate reasons

Administrative law - Judicial review - Decision of Minister invalid when made in reliance on invalid report

Legislation:

Environmental Protection Act 1986 (WA), s 4A, s 7, s 8, s 15, s 16, s 26, s 27, s 31, s 33, s 38, s 39A, s 40, s 41, s 41A, s 42, s 43A, s 44, s 45, s 100, s 101, s 106, s 109, s 122

Result:

Application allowed

Category: A

Representation:

Counsel:

First Applicant              :     Mr H Jackson
Second Applicant          :     Mr H Jackson
First Respondent           :     Mr G T W Tannin SC & Mr C S Bydder
Second Respondent       :     Mr G T W Tannin SC & Mr C S Bydder
Third Respondent         :     No appearance
Intervenor:     Mr G T W Tannin SC & Mr C S Bydder

Solicitors:

First Applicant              :     Castledine Gregory
Second Applicant          :     Castledine Gregory
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia
Third Respondent         :     No appearance
Intervenor:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
Attorney‑General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629
Attorney-General (NSW) v Quin (1990) 170 CLR 1
BHP Direct Reduced Iron Pty Ltd v CEO, Australian Customs Service (1998) 55 ALD 665
Burgess v Director of Housing [2014] VSC 648
Century Metals and Mining NL v Yeomans (1989) 40 FCR 564
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276
Coastal Waters Alliance of Western Australia Incorporated v Environmental Protection Authority (1996) 90 LGERA 136
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 2 ALD 60
Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Foreign Affairs v Lee [2014] FCA 927
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Nikac v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Shire of Carnarvon; Ex Parte Humphrey [2005] WASCA 182
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471

Table of Contents

Summary................................................................................................................................... 7
The decisions under review..................................................................................................... 8
The parties................................................................................................................................. 9

The respondents...................................................................................................................... 9
The applicants - standing........................................................................................................ 9

Time......................................................................................................................................... 10
The Environmental Protection Act 1986 (WA)..................................................................... 10

The long title......................................................................................................................... 10
The object of the Act............................................................................................................ 11
The EPA............................................................................................................................... 11
The objectives of the EPA.................................................................................................... 11
The functions of the Authority............................................................................................. 11
The powers of the Authority................................................................................................. 12
Environmental protection policies........................................................................................ 12
Environmental impact assessment........................................................................................ 13
Appeals................................................................................................................................. 15
Administrative procedures.................................................................................................... 16

The facts.................................................................................................................................. 16

The EPA's policies and procedures...................................................................................... 16
Bulletin 1088........................................................................................................................ 17
Position Statement No. 9...................................................................................................... 19
Guidance Statement No 19................................................................................................... 25
Environmental Protection Bulletin No 1.............................................................................. 27
The Proposal is referred to the EPA..................................................................................... 28
The EPA decides to assess the Proposal............................................................................... 29
Appeals against the decision to assess.................................................................................. 29
The EPA meets with Main Roads........................................................................................ 29
The assessment process........................................................................................................ 29
The Assessment Report........................................................................................................ 31
Appeals against the Assessment Report............................................................................... 38
The Minister's decision......................................................................................................... 38

The grounds of review............................................................................................................ 38
The wrong question................................................................................................................ 39
Failure to take account of published policies as a mandatory relevant consideration.... 44

General legal principles........................................................................................................ 44
Minister for Aboriginal Affairs v Peko-Wallsend Ltd.......................................................... 45
The Federal Court cases....................................................................................................... 46

Drake v Minister for Immigration & Ethnic Affairs (No 1)............................................. 46
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)................................. 48
Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce.................. 51
Nikac v Minister for Immigration and Ethnic Affairs...................................................... 52
BHP Direct Reduced Iron Pty Ltd v CEO, Australian Customs Service......................... 53
Minister for Immigration, Local Government and Ethnic Affairs v Gray........................ 53
Minister for Foreign Affairs v Lee.................................................................................... 55

Procedural fairness............................................................................................................... 57
The Western Australian cases.............................................................................................. 58

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission.......... 58
Tah Land Pty Ltd v Western Australian Planning Commission....................................... 60

Summary............................................................................................................................... 60
The subject matter, scope and purpose of the Act................................................................ 61

1.       Expertise................................................................................................................. 62
2.       Independence.......................................................................................................... 62
3.       Referral of significant proposals to the EPA......................................................... 62
4.       The EPA decides whether to assess....................................................................... 62
5.       Appeals against assessment decisions.................................................................... 63
6.       Decision‑makers must await the outcome of the assessment process.................... 63
7.       Implementation deferred until process complete................................................... 63
8.       A proponent may be required to undertake an environmental review................... 63
9.       Express provision is made for public review......................................................... 63
10.Part IV of the Act does not specify administrative procedures, assessment criteria or policies 63
11.The Act expressly empowers the EPA to promulgate administrative procedures, assessment criteria and policies............................................................................................... 64

12. Procedural fairness................................................................................................ 64
13.Changes to proposals during assessment can only be permitted in limited circumstances 65

14.     The nature of the assessment report....................................................................... 65
15.     The assessment report must be published.............................................................. 66
16.     The Minister must consult...................................................................................... 66
17.     There is a right of appeal from an assessment report............................................ 66
18.The Minister may receive reports with respect to appeals from the Appeals Convenor, Appeals Committee and EPA............................................................................................... 67

Summary........................................................................................................................... 67

Did the EPA take into account Position Statement No 9, Guidance Statement No 19 and Environmental Bulletin No 1?....................................................................................................................... 70
Miscellaneous issues............................................................................................................ 75

The specific heads of statutory power for the policy instruments.................................... 75
The significance of the policy........................................................................................... 76
The policy statements are no longer operative................................................................ 77

Summary and conclusion with respect to this ground of review......................................... 78

The adequacy of the EPA's reasons...................................................................................... 79
Were the environmental factors considered in isolation?.................................................. 80
Does the condition empowering the CEO to permit construction to commence before the environmental offsets package has been identified invalidate the Assessment Report?........................... 82
Conclusion............................................................................................................................... 84

MARTIN CJ:

Summary

In these proceedings the applicants challenge the validity of the decision made by the Environmental Protection Authority of Western Australia (the EPA) to recommend to the Minister for Environment (the Minister) that a proposal to extend the Roe Highway from Kwinana Freeway to Stock Road (the Proposal) may be implemented subject to certain conditions, and the decision of the Minister to the effect that the Proposal may be implemented subject to the conditions which he specified. The applicants seek judicial review of each of those decisions on a number of grounds. One of those grounds relies upon the EPA's publication of three statements of the policy which it would apply to the assessment of environmental impact. Those statements of policy were operative throughout the period during which the EPA assessed the Proposal, and at the time the EPA made its decision to recommend to the Minister that the Proposal may be implemented subject to specified conditions.
Each of the three statements enunciates a policy to the effect that in cases in which the process of assessment leads the EPA to conclude that implementation of a proposal would result in significant residual impact to critical environmental assets after all efforts to mitigate those impacts on site have been exhausted, then:
(a)the EPA would not consider the provision of environmental offsets to be an appropriate means of rendering such a proposal environmentally acceptable; and
(b)there would be a presumption that the EPA would recommend to the Minister that the proposal not be implemented.
In its report to the Minister following its assessment of the Proposal, the EPA concluded that implementation of the Proposal would result in significant residual impacts to critical environmental assets after all efforts at mitigation of those impacts on site had been exhausted. However, the report to the Minister makes no reference to the policy which the EPA had asserted it would apply in the three relevant policy statements current at the time the EPA made its decision and presented its report to the Minister. In particular, no reference is made in the report to the proposition that in light of the EPA's conclusions with respect to the environmental impact of the Proposal, environmental offsets would not be an appropriate means of rendering the proposal environmentally acceptable, or to the proposition that there was a presumption that the EPA would not recommend to the Minister that the Proposal may be implemented. To the contrary, the report which the EPA provided to the Minister embodies the assumption that the Proposal would be environmentally acceptable if adequate environmental offsets were provided. Further, there is no reference to the policy enunciated in the three relevant policy statements in any minutes of the meetings of the EPA in which the Proposal was considered in the three years prior to the decision of the EPA as to the outcome of the assessment, nor in any briefing note provided to the EPA relating to the Proposal.
I have concluded that the EPA took no account of its own published policies at the time it made its decision and provided its report to the Minister. I have also concluded that the EPA was legally obliged to take account of the policy enunciated in its own published policy statements as a condition of the valid exercise of the jurisdiction conferred upon it by the Environmental Protection Act 1986 (WA) with respect to environmental impact assessment. That conclusion arises from the proper construction of pt IV of the Act, viewed in the context of the Act as a whole. I have therefore concluded that the environmental impact assessment undertaken by the EPA was invalid and that this ground of review must be upheld.
The Minister's decision to allow the Proposal to be implemented subject to conditions which he specified was made in reliance upon the recommendation and report of the EPA which I have found to be invalid. It follows that the Minister's decision is also invalid.
It will be for the EPA to determine, in the light of my reasons and current circumstances, the steps which must be taken to undertake and complete an assessment of the environmental impact of the Proposal which conforms to the obligations imposed upon the EPA by the Act.
For the reasons which follow, I have also decided that all other grounds of review should be dismissed.

The decisions under review

The applicants seek judicial review of two decisions. The first is the decision of the EPA (the second respondent) made on 13 September 2013 to provide to the Minister (the first respondent) its report on the outcome of its assessment of the Proposal referred to it by the Commissioner of Main Roads Western Australia (Main Roads) (the third respondent) in which it recommended to the Minister that the Proposal may be implemented subject to the conditions specified in its report (Assessment Report).
The second decision under review is the decision of the Minister made on 2 July 2015 to allow the Proposal to be implemented subject to conditions.

The parties

The respondents

There are three respondents to the application for judicial review. They are identified in the preceding paragraphs. Main Roads has taken no active part in these proceedings and has advised the court that it will abide by any decision which is made. The Attorney General of Western Australia was given leave to intervene at a time when the grounds upon which judicial review was sought included a challenge to the impartiality of the EPA, as a result of which it was thought inappropriate for either the EPA or the Minister who acted in reliance upon the EPA's advice to actively contest the claim for relief.[1] However, those grounds were subsequently abandoned, and written and oral submissions in opposition to the relief sought were presented on behalf of the Minister, the EPA and the intervenor.

The applicants - standing

[1] Pursuant to the principles enunciated in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

There are two applicants. The first applicant is Save Beeliar Wetlands (Inc), an incorporated association which has, as its primary objective, the preservation and environmental protection of wetlands through which the proposed extension to the Roe Highway would be constructed. The second applicant is Ms Carole de Barre. As the Minister, the EPA and the Intervenor properly conceded that Ms de Barre's interests are directly affected by the decisions under review and that she is therefore a person who has a greater interest in the issues the subject of these proceedings than a member of the general public, it is unnecessary to specify the manner in which her interests are affected by the decisions under review. It follows from the concessions made by the respondents and the intervenor that Ms de Barre has standing to bring these proceedings. It also follows that although the respondents do not concede that Save Beeliar Wetlands (Inc) has standing to pursue the relief claimed, it is unnecessary to determine whether that applicant has standing, as nothing turns upon it.[2]
[2] Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471, 478 [18].

Time

These proceedings were commenced more than six months after the decision of the EPA to publish the Assessment Report. As a consequence, the applicants applied for an order to the effect that the proceedings were nevertheless commenced within time, or alternatively, for an order extending the time within which proceedings could be commenced. The respondents conceded that an order should be made extending the time for commencement of that part of the proceedings which challenged the decision of the EPA, to include the date upon which the proceedings were in fact commenced. That concession was properly made, given that these proceedings were commenced within six months of the Minister's decision to allow implementation of the Proposal. In these circumstances it is unnecessary to determine whether, as the applicants contend, the proceedings challenging the decision of the EPA were commenced within time or whether, as the respondents contend, an order for an extension of the time for the commencement of that part of the proceedings was necessary.

The Environmental Protection Act 1986 (WA)

Each ground of review asserts that the EPA, or the Minister, as the case may be, exceeded the jurisdiction conferred by the Environmental Protection Act 1986 (WA) (the Act). It follows that the proper construction and effect of the Act is central to these proceedings and, indeed, as will be seen, determinative. In this section of my reasons I will identify the provisions in the Act which are relevant to the grounds of review.

The long title

The long title to the Act declares that the Act is:
[T]o 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.

The object of the Act

Section 4A provides that the object of the Act is to protect the environment of the State having regard to five enunciated principles. As it is not asserted that any of the specific principles has particular significance to the issues in these proceedings, it is unnecessary to enunciate them.

The EPA

Part II of the Act creates the EPA and makes provision for its constitution and operation. Section 7(2) provides that members of the EPA are to be appointed on account of their interest in, and experience of, matters affecting the environment generally. Section 8 provides that subject to the Act, neither the EPA, nor the chairman of the EPA, shall be subject to the direction of the Minister. Other provisions within pt II specify the objectives, functions and powers of the EPA.

The objectives of the EPA

Section 15 of the Act provides:
It is the objective of the Authority to use its best endeavours -
(a)to protect the environment; and
(b)to prevent, control and abate pollution and environmental harm.

The functions of the Authority

Section 16 of the Act provides, relevantly:
The functions of the Authority are -
(a)to conduct environmental impact assessments; and
…
(f)to prepare, and seek approval for, environmental protection policies; and
…
(j)to publish reports on environmental matters generally; and
(k)to publish for the benefit of planners, builders, engineers or other persons guidelines to assist them in undertaking their activities in such a manner as to minimise the effect on the environment of those activities or the results thereof; and
…
(m)to coordinate all such activities, whether governmental or otherwise, as are necessary to protect, restore or improve the environment in the State; and
(n)to establish and develop criteria for the assessment of the extent of environmental change, pollution and environmental harm.

The powers of the Authority

Section 17 of the Act provides, relevantly:
(1)The Authority has all such powers as are reasonably necessary to enable it to perform its functions.
…
(3)Without limiting the generality of this section, the Authority, if it considers it appropriate or is requested to do so by the Minister, may -
…
(b)advise the Minister on any matter relating to this Act or on any proposals, schemes or questions that may be referred to it with regard to environmental matters; and
…
(d)consider and make proposals as to the policy to be followed in the State with regard to environmental matters; and
…
(g)publish reports and provide information and advice on the environment to the community at large for the purpose of increasing public awareness of the environment; and
(h)exercise such powers, additional to those referred to in paragraphs (a) to (g), as are conferred on the Authority by this Act or as are necessary or convenient for the performance of the functions imposed on the Authority by this Act.

Environmental protection policies

Part III of the Act makes provision for the preparation and publication of environmental protection policies by the EPA, subject to the approval of the Minister. As it is not contended that any policy formulated in accordance with the provisions of this Part of the Act has any relevance to the issues in these proceedings, it is unnecessary to do any more than refer to the general scheme of the Part.
Part III of the Act contains provisions relating to the preparation of draft environmental protection policies by the EPA, and for the publication of notice to the effect that such a policy has been prepared. The EPA is obliged to make reasonable endeavours to consult such public authorities and persons as appear to the Authority to be likely to be affected by the draft.[3]
[3] Section 26(1)(e) of the Act.
Any person may make representations to the Authority with respect to a draft policy, and the Authority is obliged to consider any representations made to it.[4]
[4] Sections 27 and 28 of the Act.
Other provisions of pt III empower the Minister to appoint a committee of inquiry to hold a public inquiry into the draft policy and to report to the Minister in accordance with terms of reference determined by the Minister. Other provisions of pt III oblige the Minister to make reasonable endeavours to consult such public authorities and persons as appear to the Minister to be likely to be affected by the draft policy after which the Minister is empowered to either approve the draft policy, with or without such amendments as the Minister thinks fit, or to refuse to approve the draft policy.[5]
[5] Section 31 of the Act - the Minister may also remit the draft policy to the EPA for reconsideration.
If the Minister approves a draft policy prepared by the EPA, until that approval is revoked, the policy has the force of law as though it had been enacted as part of the Act.[6]

Environmental impact assessment

[6] Section 33 of the Act.

Part IV of the Act makes provision for the referral of proposals that are likely, if implemented, to have a significant effect on the environment to the EPA, and for the assessment of such proposals by the EPA. When such a proposal has been referred to the EPA, the EPA must decide whether or not to assess the proposal and if the proposal is to be assessed, the level of that assessment.[7] Any person may refer a proposal to the EPA, as may the Minister.[8] A decision‑making authority must refer to the EPA any proposal likely, if implemented, to have a significant effect on the environment.[9] A decision‑making authority that has referred a proposal to the EPA cannot make any decision that could have the effect of causing or allowing the proposal to be implemented until the processes for which pt IV provides are complete.[10]
[7] Section 39A of the Act.
[8] Section 38 of the Act.
[9] Section 38 of the Act.
[10] Section 41 of the Act.
If the Authority decides to assess a proposal, any person who does anything to implement the proposal before the Minister publishes a statement to the effect that the proposal may be implemented commits an offence.[11]
[11] Section 41A of the Act - although the prohibition does not apply to minor or preliminary work done with the consent of the EPA.
For the purposes of assessing a proposal, the EPA may require the proponent to undertake an environmental review and report upon that review to the EPA, which may cause that report to be made available for public review for a period to be determined by the EPA.[12] The EPA may also determine the extent to which and the manner in which public authorities or persons may make submissions to the EPA in respect of that report.[13] The EPA may also require the proponent to advertise the report's availability for public review, at the proponent's expense, and to provide copies of the report free of charge or at a price to be determined by the authority, and may also require the proponent to respond to any submissions made to the EPA in respect of the report.[14]
[12] Section 40 of the Act.
[13] Section 40 of the Act.
[14] Section 40 of the Act.
With the approval of the Minister, the EPA may also conduct a public inquiry[15] which has all the powers of a Royal Commission appointed pursuant to the Royal Commissions Act 1968 (WA).[16]
[15] Section 40 of the Act.
[16] Section 42 of the Act.
If a proposal changes during the course of an assessment, the EPA may consent to the change if it considers the change is unlikely to significantly increase any impact that the proposal may have on the environment.[17] Otherwise the process must commence afresh.
[17] Section 43A of the Act.
Section 44 of the Act provides, relevantly:
(1)If the Authority assesses a proposal, it is to prepare a report on the outcome of its assessment of the proposal and give that report (the assessment report) to the Minister.
(2)The assessment report must set out -
(a)what the Authority considers to be the key environmental factors identified in the course of the assessment; and
(b)the Authority’s recommendations as to whether or not the proposal may be implemented and, if it recommends that implementation be allowed, as to the conditions and procedures, if any, to which implementation should be subject.
(2a)The Authority may, if it thinks fit, include other information, advice and recommendations in the assessment report.
…
Section 44(3) obliges the Minister to cause the assessment report to be published and to cause copies of that report to be given to any other Minister likely to be interested in the proposal, each decision‑making authority with an interest in the proposal, and to the proponent. Section 45 of the Act provides that after the Minister has caused an assessment report to be published, and undertaken processes of consultations specified by the section (including consultation with other relevant Ministers and decision‑making authorities), the Minister is to determine whether or not the proposal to which the report relates may be implemented and if so, the conditions and procedures to which implementation is to be subject. If the Minister decides that the proposal may be implemented, the Minister is obliged to serve copies of a statement setting out his decision to that effect upon various persons specified in the section. The section also provides that if an appeal is lodged in respect of an assessment report, the proposal shall not be implemented while the appeal is pending or otherwise than in accordance with the decision made on the appeal.

Appeals

Part VII of the Act makes provision for appeals against various decisions of the EPA. Relevantly, s 100 of the Act provides:
(1)Any decision‑making authority, responsible authority, proponent or other person that disagrees with -
(a)a recorded decision of the Authority that a proposal is not to be assessed …; or
(d)the content of, or any recommendation in, the report prepared under section 44 in respect of a proposal;
…
may lodge with the Minister an appeal in writing setting out the grounds of the appeal.
Other provisions of Pt VII specify the manner in which appeals are to be considered and, ultimately, determined by the Minister. Where an appeal is lodged pursuant to s 100 of the Act, the Appeals Convenor must request the EPA to report to the Minister on the appeal.[18] The Minister may appoint an appeals committee to consider and report on any appeal.[19] If an appeals committee is appointed, it must consult the EPA and the appellant and may consult such other persons as it considers necessary.[20] An appeals committee must report to the Minister on its findings and recommendations and the Minister must allow or dismiss the appeal.[21] The Minister may also remit the proposal to the EPA for assessment, further assessment or reassessment.[22] As the precise mechanisms for the determination of appeals are not relevant to the issues in these proceedings, it is unnecessary to refer to those provisions in any greater detail.

Administrative procedures

[18] Section 106 of the Act.

[19] Section 106 of the Act.

[20] Section 109 of the Act.

[21] Section 109 of the Act.

[22] Section 101 of the Act.

Section 122 of the Act provides that the EPA may draw up administrative procedures for the purposes of the Act and in particular for the purpose of establishing the principles and practices of environmental impact assessment, and may amend or revoke those administrative procedures from time to time.

The facts

The evidence took the form of a series of affidavits with extensive annexures tendered by consent, together with an aerial photograph and schematic diagram showing the location of the proposed highway. None of the deponents of the affidavits were required to give oral evidence. The facts established by the evidence and which are relevant to the grounds of review are as follows.

The EPA's policies and procedures

The EPA has developed an elaborate structure of published policies, guidance documents and procedural statements 'to help proponents during the environmental impact assessment (EIA) process in Western Australia'.[23] A document published by the EPA identifies the following categories of publication (as at May 2014):
•Environmental Protection Policies
•State Environmental Policies
•Environmental Impact Assessment … Administrative Procedures (2012)
•Environmental Assessment Guidelines
•Environmental Protection Bulletins
•Strategic Advice
•Post Assessment Guidelines[24]
[23] 'Info sheet' published by the EPA in May 2014 entitled 'Policy Structure' attachment 1 to the affidavit of Naomi Jane Arrowsmith.
[24] 'Info sheet' published by the EPA in May 2014 entitled 'Policy Structure' attachment 1 to the affidavit of Naomi Jane Arrowsmith.
The category of Environmental Assessment Guidelines has replaced a previous category of published policy which was operative at times relevant to this case, namely Guidance Statements. All Guidance Statements are being progressively reviewed and updated as Environmental Assessment Guidelines.[25] The category 'Environmental Protection Bulletins' has replaced a previous category of published policy which was operative at times relevant to this case, namely Position Statements. All Position Statements are being progressively reviewed and updated as Environmental Protection Bulletins.[26]

Bulletin 1088

[25] Affidavit of Naomi Jane Arrowsmith at [17] ‑ [18].

[26] Affidavit of Naomi Jane Arrowsmith at [21] ‑ [22].

In February 2003, the EPA published Bulletin 1088, a document entitled 'Environmental values associated with the alignment of Roe Highway (Stage 8)'.
The Bulletin reports that the then Minister sought the advice of the EPA in relation to the alignment for Roe Highway Stage 8 following a request from the then Minister for Planning and Infrastructure. The Bulletin is said to provide 'environmental advice on the key environmental values associated with the alignment of Roe Highway Stage 8[27] and likely impacts arising if construction was undertaken'. The Bulletin expressly states that it does not constitute a formal assessment by the EPA and that the 'purpose of the advice is to provide independent guidance on environmental issues to government at a stage when formal assessment by the EPA under Part IV of the [Act] is not possible'.
[27] In many of the documents adduced in evidence, the Proposal to extend Roe Highway from Kwinana Freeway to Stock Road is described as 'Roe Highway Stage 8'. It is convenient to adopt the same nomenclature in these reasons.
The Bulletin is said to be published pursuant to s 16(j) of the Act. As s 16(j) of the Act refers to the publication of 'reports on environmental matters generally', and Bulletin 1088 is concerned with the specific environmental issues associated with a specific proposal at a particular location, there is room for doubt as to the correctness of the identification of s 16(j) of the Act as the source of the power to publish the Bulletin. However, as nothing turns upon the proper identification of the source of that power and no party contends that publication of the Bulletin was beyond the powers of the EPA, it is unnecessary to consider that question any further.
The Bulletin sets out the then proposed alignment of Roe Highway Stage 8 and identifies relevant environmental values and likely impacts upon those values if construction was to proceed. The conclusions drawn from the processes of assessment of the Proposal in its then current form were expressed in the following terms:
This report provides advice on the key environmental values that would be impacted by construction of a highway within the alignment of Roe Highway Stage 8.
The area within and adjacent to the alignment where it bisects Beeliar Regional Park is considered to be of high conservation value and significance due to the ecological linkages it provides and the wetland, vegetation, faunal, ecological, aboriginal and social values that are represented. In addition to directly impacting on the wetland, vegetation and faunal values, the construction and operation of a highway through the area will also lead to further severance of these ecological linkages, reducing the area's viability and long‑term management.
As well as the direct impacts of the construction of a road, there would also be a significant increase in traffic moving through the area. The current projections for the number of vehicles that would travel through this area as a result of construction and operation of Roe Highway Stage 8 is estimated to be approximately 40,000. This would have a significant impact on the area's wetlands, vegetation, fauna and ecological linkage. Construction and operation of a highway would also significantly impact on the fauna movement through the area due to the significant barrier it would pose as well as the potential for increased road kills. There is also the potential for spillages due to the significant increase in freight vehicles moving through the area.
Accordingly, the EPA concludes that any proposal for the construction of the alignment of Roe Highway Stage 8 through the Beeliar Regional Park would be extremely difficult to be made environmentally acceptable. It is accepted that through design and construction there is the potential to manage and minimise the potential impacts to a certain extent. However, the EPA is of the opinion that the overall impacts of construction within the alignment, or any alignment through the Beeliar Regional Park in the vicinity of North Lake and Bibra Lake, would lead to the ecological values of the area as a whole being diminished in the long‑term. Every effort should be made to avoid this.
It is recommended that other alternatives to direct freight through the general area, which do not involve the clearing and filling of the wetlands within the Beeliar Regional Park, be pursued.

Position Statement No. 9

In January 2006 the EPA published a document entitled 'Environmental Offsets - Position Statement No. 9'. The Position Statement remained operative until August 2014, and therefore was in operation over the period during which the EPA assessed the Proposal, and at the time it presented the Assessment Report to the Minister.
The document does not itself identify any specific source of legislative power for its publication. The identification of a specific source of legislative power to publish the statement was addressed by counsel for the applicants during the course of argument, and is a matter to which I will return.
The glossary to the Position Statement describes environmental offsets in the following terms:
Environmental offsets are commonly referred to [as] environmentally beneficial activities undertaken to counterbalance an adverse environmental impact, aspiring to achieve 'no net environmental loss' or a 'net environmental benefit' outcome.
The introduction to the Position Statement refers briefly to previous attempts to develop and use environmental offsets as an environmental management tool in Western Australia. In that context it is asserted:
The [EPA] currently recognises that various offset policies and approaches are being developed and used without common overarching principles and acknowledges that there is the potential for inconsistent messages to be given. In addition, there is some concern from the community about what offsets should and shouldn't be.
The EPA is also concerned about perceptions that negotiated offset and compensation packages are being used to make otherwise 'unacceptable' adverse environmental impacts 'acceptable' within government. It is aware that some environmental offsets, proposed in the guise of sustainability tools, are sometimes over-riding the protection and conservation of our State's most valuable environmental assets. Over time, the cumulative effects of this type of decision‑making would contribute to a gradual decline in both the quality and quantity of the State's priority environmental assets. The EPA is of the view that this approach is neither sustainable nor focused on protecting the environment. It is also aware there may be equity issues that need to be addressed by government. The challenge now is to find the means of doing so effectively.
...
In view of the afore‑mentioned issues, the EPA is developing this Position Statement to provide overarching guidance and to establish a consistent policy approach on the matter. This position statement provides some clarification on the options for industry, developers, environmental consultants, specialist scientists and community groups who may be involved in developing or reviewing options for environmental offsets.
Where a proponent for a development is subject to the environmental impact assessment and approval process, and environmental offsets are properly part of those considerations, the EPA expects proponents to put forward commitments for offsets as part of their proposal.
The Position Statement contains a general discussion of various issues associated with the use of environmental offsets to mitigate environmental impact. In that section of the document, a number of important policy issues are addressed. They include the general question of whether environmental offsets do in fact mitigate or ameliorate adverse environmental impact if the offset is nothing more than the acquisition and maintenance of other land in its current environmental condition. There is a cogent argument to the effect that unless there is a real or appreciable risk of the environmental degradation of that other land, the mere act of acquisition and maintenance of that land does not mitigate or 'offset' the environmental degradation of other land in any material way. As counsel for the applicants expressly conceded that none of the grounds of review raise any issue with respect to the adequacy of the environmental offsets proposed by the EPA in relation to the Roe Highway Stage 8 Proposal, it is neither necessary nor appropriate for me to say anything more about that issue.
Section 2 of the Position Statement is entitled 'Purpose'. Its introductory paragraphs state:
The purpose of this Position Statement is to provide the community, government agencies, industry, developers, consultants, business and other key stakeholders with overarching advice about the intent and appropriate use of environmental offsets.
The EPA considers the purpose, scope and principles in this Position Statement to be important and these will help guide the EPA in future decision‑making and in its advice. It must also be reinforced that the EPA's environmental offsets policy position in no way affects the legitimacy of other policy positions related to conservation and environmental protection. The EPA holds the view that environmental offsets should not be considered in isolation, but rather as part of an integrated framework for improved management of the environment that includes regulatory and behavioural incentive programs.
Section 3 of the Position Statement sets out a number of principles which the EPA will apply when considering environmental offsets. Because, as I have noted, the adequacy of the offsets proposed by the EPA in this case is not in issue, it is unnecessary to refer to those principles in any detail.
Section 4 of the Position Statement is entitled 'Scope'. It provides:
The scope of this Position Statement applies to all environmental issues, matters and advice for which the EPA has jurisdiction ...
Ecosystems and Emissions
This Position Statement is relevant to all new proposals for significant adverse impacts to ecosystems and for emissions to the environment.
The EPA on the advice of relevant government agencies will determine whether adverse residual impacts are significant or not ...
Critical assets
'Critical assets' represent the most important environmental assets in the State that must be fully protected and conserved for:
•the State to fulfil its statutory and policy requirements;
•the State to remain sustainable in the longer term; and,
•the EPA to comply with its general principles for advice and decision‑making ....
Therefore, when the issue is before the EPA, there is a presumption against recommending approval for proposals that are likely to have significant adverse impacts to 'critical assets'. The EPA does not consider it appropriate to validate or endorse the use of environmental offsets where projects are predicted to have significant impact to the following: ...
There follows a list of various types of environmental asset which are, by clear implication, to be taken to be 'critical assets'. That list includes the following items relevant to the Proposal for Roe Highway Stage 8:
•regional parks;
•Bush Forever reserves;
•Declared Threatened Fauna;
•Environmental Protection Policy wetlands; and
•Conservation Category Wetlands.
In this section of the Position Statement, under the heading 'Government decision framework' it is asserted:
In some instances, significant adverse impacts to 'critical assets' may be approved by State Government Ministers to provide an essential community service (such as electricity, water, gas and transport infrastructure), public benefit, or to allow strategic social or economic development to occur.
Under these circumstances, the EPA's advice is that approval of any such project of this nature should be made conditional on the:
•consideration or demonstration (to the maximum extent possible) of on‑site impact mitigation; and
•development and implementation of an acceptable, comprehensive offsets package for significant, residual adverse impacts.
Section 5 of the Position Statement is concerned with implementation. Under the heading 'When and how should environmental offsets be approved?' it is asserted:
The following are key questions about the application of environmental offsets. They are dealt with in more detail in the companion paper to this Position Statement viz. the EPA's Guidance Statement on Environmental Offsets (in preparation).
Test 1 - are these proposed new activities, extensions or enhancements to existing activity, or existing activities requiring renewal of State government environmental approvals likely to have significant environmental impacts?
Test 2 - before offsets are considered, are potential environmental impacts demonstrably addressed following the hierarchy:
- avoid
- minimise (limit magnitude)
- rectify (restore, repair)
- reduce (over time)?
Test 3 - are residual environmental impacts expected to have a significant adverse impact on critical or high value assets?
Test 4 - do residual environmental impacts remain significant but not so significant that the activity is likely to be found environmentally unacceptable (including in a cumulative impacts context)?
Test 5 - can significant residual environmental impacts be offset directly (including 'like for like or better')?
Test 6 - if such impacts cannot be fully or partially offset directly what contributing offsets could be reasonably proposed and implemented?
Test 7 - does the offsets package (direct and contributing) achieve the aspirational goal of 'net environmental benefit'? Are positive offsets ratios relevant?
Test 8 - is the offsets package robust and likely to provide a long‑lasting benefit?
Test 9 - have the costs of enduring management and maintenance been included?
Test 10 - is the commitment to an offsets package clearly defined, transparent, implementable, enforceable and auditable?
Then follows a diagrammatic depiction of the decision‑making process when environmental offsets are involved. The diagram commences with an inverse pyramid headed 'environmental assets' in which categories of assets are described in descending order of importance - namely, 'critical assets', 'high value assets', and 'low/med value assets'.
In the text adjacent to the diagram describing these categories of assets, 'critical assets' are described in the following terms:
Critical Assets: represent the State's most important environmental assets that must be fully protected and conserved ... Significant adverse impacts to these assets should be avoided at all costs. Therefore, the EPA in providing its advice will adopt a presumption against approval of project proposals where significant adverse impacts affect 'critical assets'. However, where projects have been approved by the State Government (see Section 4) approval should be conditional on the:
•consideration or demonstration (to the maximum extent possible) of on‑site impact mitigation; and
•development and implementation of an acceptable offsets package for significant, residual adverse impacts.
Consistently with the text, in the diagram depicting the decision‑making process, an arrow connects the box containing the words 'critical assets' to a box which states 'presumption that no significant impacts acceptable unless decided by State Govt ('special circumstances')'. An arrow connects that box to an inverted pyramid entitled 'on‑site impact mitigation' and another arrow connects that inverted pyramid to a box entitled 'offset package'. Viewed in the context of the text, it is clear that those arrows are only to apply to the decision‑making process relating to critical assets if the presumption that no significant impacts are acceptable has been rebutted or it has been decided by the State Government that the project will proceed irrespective of its environmental impact.
Subsequent portions of this section of the Position Statement describe the differing types of environmental offsets which may, perhaps in combination, produce an acceptable package of environmental offsets.
When the Position Statement is read as a whole, its general tenor is clear. The policy of the EPA, enunciated in the document, is to the effect that when in the course of undertaking an environmental impact assessment the issue of environmental offsets arises for consideration, two critical issues will be addressed by the EPA. The first issue concerns the quality of the assets which will be affected by the proposal, and in particular, whether the assets fall within the category of 'critical', 'high value', or 'low/medium value'. The second critical issue concerns the character of the residual adverse environmental impact after all steps which can be taken to mitigate those impacts on site have been taken.
If the environmental assets affected by the proposal come within the 'critical' category, and if the impact of the proposal upon those assets will be significant after all steps at on‑site mitigation have been taken, the EPA will proceed on the basis that there is a presumption against recommending approval of the proposal, and the use of environmental offsets will not be considered. However, if the State Government has already determined that the proposal will proceed then the EPA will advise government that approval of the proposal should be conditional upon mitigation of on‑site impact to the maximum extent possible, and the development and implementation of an acceptable and comprehensive offsets package.

Guidance Statement No 19

In September 2008 the EPA published a document entitled 'Guidance for the Assessment of Environmental Factors - Environmental Offsets - Biodiversity No. 19'. The document remained operative until August 2014 and therefore, like Position Statement No 9, was operative during the course of the EPA's assessment of the Proposal and at the time the EPA presented the Assessment Report to the Minister. Also like Position Statement No 9, the document itself does not identify any particular source of legislative power for its publication. That is an issue to which I will return.
The foreword to the Guidance Statement advises readers that the advice contained within the document complements and should be read in conjunction with Position Statement No 9. That advice is repeated in the text of the document under the heading 'Purpose' where it is asserted:
This Guidance Statement specifically addresses environmental offsets for proposals or schemes that impact on biodiversity. It should be read in conjunction with Position Statement No. 9 ... The main purpose of this Guidance Statement is to provide more specific advice than in the Position Statement, particularly in relation to the technical application of biodiversity offsets and the presentation of offsets packages to the EPA.
...
The scope of this Guidance Statement applies to all proposals and schemes referred to the EPA that have significant adverse impacts on biodiversity assets of 'high' or 'critical' value.
Under the heading 'The Issue' further reference is made to Position Statement No 9. It is asserted that:
The EPA's Position Statement No. 9 ... established a policy approach for the use of environmental offsets in the context of EIA[28] in Western Australia. This policy approach forms the basis for this Guidance Statement.
[28] Environment Impact Assessment.
Under the heading 'The Guidance' the following section appears:
3.1Determining when it is appropriate to apply offsets:
In the context of EIA,[29] several criteria need to be assessed by proponents to determine if they have significant adverse residual impacts and therefore if it is appropriate to consider offsets.
•Significant adverse impacts to assets
Where there are significant adverse impacts to 'critical' assets, the EPA will assess the proposal or scheme through EIA.[30] The EPA, in providing its advice to the Minister, will adopt a presumption against recommending approvals of proposals or schemes where significant adverse environmental impacts affect 'critical' assets.
[29] Environment Impact Assessment.
[30] Environment Impact Assessment.
The glossary to the document describes 'critical assets' to
represent the most important environmental assets in the State that must be fully protected and conserved for:
•the State to fulfil its statutory and policy requirements;
•the State to remain sustainable in the longer term; and
•the EPA to comply with its general principles for advice and decision‑making.
As with Position Statement No 9, the Guidance Statement contains a diagrammatic representation or flowchart, setting out the process which will be followed by the EPA in undertaking an assessment of environmental impact in cases involving environmental offsets. The diagram is structured in such a way as to show that each proponent must demonstrate that 'all reasonable attempts to mitigate adverse impacts have been exhausted'. The diagram shows that the next step in the assessment process depends upon whether the environmental assets are 'critical' or alternatively 'high value'. If the assets are critical, the diagram reveals two possibilities. The first involves the case in which significant adverse residual impacts on critical assets remain after all reasonable attempts to mitigate those impacts have been exhausted. In that case, the flowchart directs that 'offset discussions are ceased due to EPA presumption against recommending approval'.
The second possibility depicted in the diagram relating to critical assets occurs 'when significant adverse residual impacts on critical assets remain but are not significant enough to make the proposal or scheme unacceptable'. A note to the diagram states that the determination of 'significance' is 'a judgement of the EPA'. If the case comes within this category, the flowchart reveals that the next step is for proponents to consider offsets and discussion of potential offsets may take place with the EPA. However, '[p]roponents should not assume that offsets will be accepted at this stage as the EPA will assess their adequacy on a case‑by‑case basis and in the context of the entire proposal'.
So, Guidance Statement No 19, which is limited to the use of offsets in connection with biodiversity, is generally consistent with Position Statement No 9, except that it contemplates a category of case in which the residual impacts on critical assets after all attempts to mitigate those impacts have been exhausted are significant, but 'not significant enough to make the proposal or scheme unacceptable'. In such a case, environmental offsets may be considered and discussed with the EPA, but it should not be assumed that they will be accepted. It may be that this category of case corresponds with the category of case implicit in Position Statement No 9, being that category of case in which the presumption against approval is rebutted, notwithstanding the conclusion that the Proposal will have a significant residual impact upon critical environmental assets, although nothing turns upon the question of whether there is in fact any significant difference between Position Statement No 9 and Guidance Statement No 19 in this respect.

Environmental Protection Bulletin No 1

Also in September 2008 the EPA published a document entitled 'Environmental Protection Bulletin No. 1 - Environmental Offsets - Biodiversity'. As with the two documents published by the EPA which I have considered immediately above, this document remained operative until August 2014, and was therefore operative during the process of environmental assessment of the Proposal, and at the time of presentation of the Assessment Report to the Minister.
Like the other two documents to which I have referred immediately above, the document itself does not identify any specific legislative authority for its publication. Again, that is a matter to which I will return.
Under the heading 'What are environmental offsets?' it is asserted that:
Environmental offsets are a package of activities undertaken to counter adverse environmental impacts arising from a development. Offsets are the 'last line of defence' and are considered after all steps have been taken to minimise impacts resulting from a development. Offsets aim to ensure that any adverse impacts from development are counter‑balanced by an environmental gain somewhere else.
The [EPA] believes environmental offsets should be used with a goal of achieving a net environmental benefit. This recognises that the environment has been significantly compromised in the past and that halting and reversing the decline of the environment is now a priority.

Under the heading 'When should offsets be considered?' it is asserted that:
Offsets should only be considered after all efforts to avoid and minimise environmental impacts have been made and significant environmental impacts still remain.
Major development proposals or schemes that have significant environmental impacts, particularly on 'critical' and 'high' value assets, will usually trigger the EPA's environmental impact assessment process. 'Critical' assets are the most important environmental assets in the State and are listed in EPA Position Statement No 9 ...
The EPA advises the Minister for the Environment on whether a project should be approved or not. In providing its advice to the Minister, the EPA adopts a presumption against recommending approval of proposed projects where significant adverse environmental impacts affect 'critical' assets. The EPA determines on a case‑by‑case basis how significant an impact is and this in turn influences the decision to assess the project through the environmental impact assessment process and its recommendations to the Minister including advice on the adequacy of proposed offsets.

The Proposal is referred to the EPA

On 20 April 2009 an officer of Main Roads wrote to the Chairman of the EPA enclosing a formal referral of the Proposal to construct Roe Highway Stage 8.

The EPA decides to assess the Proposal

On 13 May 2009 the EPA determined that it would assess the Proposal, and that the level of assessment would be that of a Public Environmental Review (PER), with a review period of six weeks. A PER is the most detailed and intensive level of assessment utilised by the EPA and, as its description implies, involves the provision of an opportunity for public review and for submissions to be provided to the EPA by the public.

Appeals against the decision to assess

Between May and October 2009 12 appeals were lodged against the EPA's decision to assess the Proposal of the level of a PER with a review period of six weeks. On 2 November 2009 the Minister upheld those appeals in that the period for public comment was extended from six to 12 weeks.[31]

The EPA meets with Main Roads

[31] In 2009, s 100 of the Act allowed appeals to be lodged against decisions of the EPA with respect to the level of assessment of a proposal.

On 29 April 2010 representatives of Main Roads gave a presentation on the Proposal for the Roe Highway Stage 8 extension to a meeting of the EPA. The minutes of that meeting record that the key environmental issues identified for the Proposal were wetlands, flora, native vegetation and fauna, and acid sulphate soils. The minutes also record that:
The EPA stated that the area is a critical asset and as such environmental offsets may not be appropriate where there are likely to be significant residual adverse impacts.
I digress to observe that this record of discussion appears to reflect the policy enunciated in Position Statement No 9, and the other published policy documents to which I have referred. I also observe that this appears to be the only occasion upon which any reference to that policy appears in the minutes of meetings of the EPA at which the Proposal was considered.

The assessment process

During June 2010 the EPA approved an environmental scoping document provided by Main Roads as providing an acceptable basis for the preparation of the PER. A year later, in June 2011, the EPA approved the PER prepared by Main Roads for public release. During the period of public review which followed publication of the PER, 3283[32] submissions were provided to the EPA by members of the public. Between July 2012 and May 2013 Main Roads responded to those submissions.
[32] Affidavit of Alanna Bernice Fandry, 2182.
The Proposal was considered by the EPA at a meeting held on 20 June 2013. The minutes of that meeting record that:
The OEPA[33] has yet to finalise the detailed analysis of the factors to determine whether the Proposal can meet the EPA's objectives with offsets.
[33] Office of the EPA.
The minutes of the meeting do not record any reference to a presumption that offsets would not be considered and that the EPA would recommend refusal of the Proposal if, after all options for the mitigation of environmental impact had been exhausted, there would be a significant residual impact upon critical assets.
The Proposal was again considered by the EPA at a meeting held on 18 July 2013. A briefing note prepared by the office of the EPA for the consideration of members at that meeting recommended that the EPA adopt the assessment strategy outlined in that note and agree that 'the proposal to extend Roe Highway from Kwinana Freeway to Stock Road can be managed to meet the EPA's objectives' subject to the implementation of environmental conditions specified in the note, and further recommended that the EPA agree that the Chairman of the EPA finalise and release the Assessment Report pursuant to s 44 of the Act.
The briefing note includes an assessment of the key environmental factors said to arise from the Proposal and includes detailed consideration of environmental offsets which would 'counterbalance any significant residual environmental impacts'.[34]
[34] Affidavit of Alanna Bernice Fandry, 2218.
The briefing note contains no reference to Position Statement No 9, or to Guidance Statement No 19, or to Environmental Protection Bulletin No 1. Nor does the briefing note contain any reference to a presumption against recommending approval of the Proposal if it would result in significant residual environmental impacts upon critical environmental assets. Rather, as I have noted, the briefing note proposes, without discussion or consideration of any of those previously published documents, that offsets be adopted to 'counterbalance any significant residual environmental impacts'.
The minutes of the meeting of the EPA held on 18 July 2013 record that members discussed the Proposal before being joined by representatives of Main Roads. After those representatives joined the meeting, the minutes record discussion of offsets in the following terms:
With the Perth - Peel strategic assessment probably having locked up the potential offset land, the proponent has limited offset options and is currently considering a combination of rehabilitating degraded land (to be identified), as well as putting into reserve the undeveloped portion of the Road Reserve. Considerations include the Commonwealth's requirements for restoration to be in the habitat range of the fauna that is to be protected (black cockatoo), and for vegetation to be in as good if not better condition than the vegetation being lost.
Although the offsets package is still to be determined, the Government is keen to reach a decision on the environmental acceptability of the proposal prior to reviewing costing and making a decision on implementation, funding and timing. The time between decision and implementation would provide for more consideration to be given to an offsets strategy.
...
The EPA agreed to proceed with the assessment on the basis that the details of the offsets package remain to be finalised and that the EPA/OEPA would explore with the proponent the opportunities to achieve a net environmental benefit.
The minutes of that meeting also record that the members of the EPA accepted the recommendations made in the briefing note and in particular agreed to adopt the assessment strategy outlined in that briefing note and further agreed to recommend that the Proposal could be implemented subject to the conditions specified in the briefing note and authorised the Chairman of the EPA to finalise and release the Assessment Report.

The Assessment Report

On 13 September 2013 the EPA presented to the Minister its report of the assessment of the Proposal, and its recommendations as to whether or not the Proposal may be implemented.
The summary at the commencement of the Assessment Report identifies the key environmental factors found by the EPA. They are:
(a)inland waters environmental quality;
(b)hydrological processes;
(c)flora and vegetation;
(d)terrestrial fauna;
(e)amenity (noise); and
(f)offsets.
In a section of the Assessment Report entitled 'Background and Context' reference is made to Bulletin 1088 published in February 2003. In that context, the Report notes that
[T]hrough [the] proponent's extensive consultation and planning and design work it has avoided and minimised impacts on wetlands, native vegetation and native fauna
through a number of specific measures.
The summary goes on to record that notwithstanding those measures the Proposal will have a number of residual environmental impacts being:
•the clearing of 97.8 ha of native vegetation including 5.4 ha of Beeliar Regional Park and 7 ha of Bush Forever Site 244;
•loss of 78 ha of foraging habitat and 2.5 ha of potential nesting habitat for the Carnaby's Black Cockatoo and Forest Red‑tailed Black Cockatoo;
•clearing of 6.8 ha of wetlands including wetlands protected under the Environmental Protection (Swan Coastal Plain Lakes) Policy 1992 and Conservation Category Wetlands; and
•fragmentation of wetlands and fauna habitat.
I digress to observe that many of these residual impacts involve impacts upon 'critical assets' within the meaning of Position Statement No 9, although no reference is made to that fact in the Summary. To the contrary, after listing those residual impacts, the Summary proceeds:
The EPA considers the above residual impacts to be significant and they would therefore need to be counterbalanced through the provision of environmental offsets.
I digress further to observe that this process of reasoning appears to be directly contrary to the policy enunciated in Position Statement No 9 and reiterated in Guidance Statement No 19 and Environmental Bulletin No 1, the tenor of which is to provide that environmental offsets will not be 'appropriate' if the Proposal will result in significant residual environmental impact upon critical assets. Nor is there any reference in the summary or anywhere else in the Assessment Report to any presumption against recommending approval of a proposal which would result in significant environmental impact upon critical environmental assets.
The summary goes on to refer to the package of environmental offset measures proposed by the proponent, and the components of the package which would be required by the EPA in the conditions which it recommends be applied to any approval of the Proposal.
The summary concludes by recording that:
The EPA has therefore concluded that the proposal would meet the EPA's objectives for the key environmental factors assessed and as such it recommends the proposal be approved subject to the recommended environmental conditions summarised below.[35]
[35] Assessment Report, page vi.
As foreshadowed in the summary, the text of the Assessment Report deals with each key environmental factor identified by the EPA in its assessment of the Proposal. Dealing firstly with the factor of inland waters environmental quality, the Assessment Report records the EPA's conclusion that the residual impacts of the Proposal during construction and operation can be managed to meet the EPA's objectives, provided certain conditions are imposed. The Report records the same general conclusion in relation to the second key environmental factor assessed - namely, hydrological processes.
In respect of the third key environmental factor addressed - namely, flora and vegetation, the Assessment Report records the EPA's conclusion that:
[D]espite the best efforts by the proponent to minimise impacts, there is still the unavoidable loss of 6.8 ha of wetlands comprising 5.8 ha of CCWs[36] and 1 ha of EPP[37] wetlands. This is considered to be a significant residual impact of the proposal and hence would require an environmental offset. This is discussed in Section 5.6 of the report.[38]
[36] Conservation Category Wetlands.
[37] Environment Protection Policy (Swan Coastal Plain Lakes) 1992.
[38] Assessment Report, page 28.
In the same section the Assessment Report records the EPA's conclusion that:
[D]espite the best efforts by the proponent to minimise impacts on Beeliar Regional Park and Bush Forever site 244, there will be a loss of 5.4 ha and 7 ha respectively. This is considered to be a significant residual impact of the proposal and hence would require an environmental offset. This is discussed in Section 5.6 of the report.[39]
[39] Assessment Report, page 28.
Later in the same section of the Assessment Report, after considering various mitigation proposals suggested by the proponent, the EPA records its conclusion that:
[T]here still remains a significant residual impact to the EPA's key environmental factor of flora and vegetation, and hence an environmental offset is necessary in order to counterbalance the impacts from this proposal.
The proponent has put forward an environmental offsets package to address the proposal's significant residual impacts. The quantum of the offset proposals, objectives and their adequacy is set out in Section 5.6 of this report.[40]
[40] Assessment Report, pages 29 ‑ 30.
I digress to observe that, as with the summary, no reference is made in this section of the Assessment Report, or indeed anywhere in the Assessment Report to policies enunciated in Position Statement No 9, Guidance Statement No 19 and Environmental Bulletin No 1. The process of reasoning enunciated in the Assessment Report appears directly contrary to the policies enunciated in those documents in that the Assessment Report accepts, without enunciating any process of reasoning, that environmental offsets can be used to address significant residual impacts to critical assets.
The same observation applies to a conclusion expressed later in the next section of the Assessment Report under the heading 'Terrestrial fauna', in the following terms:
Having taken all reasonable and practical measures to avoid and mitigate the potential impacts, there still remains a significant residual impact to the EPA's key environmental factor of terrestrial fauna through habitat fragmentation and loss of Black Cockatoo foraging habitat, and hence an environmental offset is necessary.
The proponent has put forward an environmental offsets package to address the proposal's significant residual impacts. The quantum of the offset proposals, objectives and their adequacy is set out in Section 5.6 of this report.
In section 5.6 of the Assessment Report, under the heading 'Offsets' it is asserted that:
The EPA's environmental objective for this factor is to counterbalance any significant residual environmental impacts or uncertainty through the application of offsets.
After all avoidance and minimisation actions have occurred, the following significant residual impacts remain:
•Clearing of:
•97.8 ha of remanent native vegetation;
•78 ha of foraging habitat for Carnaby's Cockatoo;
•73 ha of foraging habitat for Red‑tailed Black Cockatoo;
•2.5 ha of potential Black Cockatoo nesting habitat;
•5.4 ha of Beeliar Regional Park;
•7 ha of Bush Forever site 244.
•Impacts to:
•6.8 ha of wetlands, including CCWs.
•Fragmentation of:
•fauna habitat;
•assemblages for priority fauna;
•Swan Coastal Plain significant bird species habitat;
•migratory birds and significant wetland bird species habitat.
CCWs,[41] threatened fauna, priority fauna and conservation areas are all critical assets in accordance with Position Statement 9 Environmental Offsets. Impacts to critical assets should be avoided and minimised as far as possible. The residual impacts are considered to be significant due to the importance of these assets. (emphasis in original)
[41] Conservation Category Wetlands.
I digress to observe that this portion of the Assessment Report records the EPA's conclusion that after exhausting all actions which can be taken to mitigate environmental impact, the residual impacts to critical assets are significant. Although specific reference is made to Position Statement No 9,[42] the Assessment Report makes no reference to the policy enunciated in that Statement to the effect that in such circumstances environmental offsets are not 'appropriate' and there is a presumption against recommending approval of the Proposal.
[42] This is the only reference to Position Statement No 9 in the Assessment Report, which contains no reference to Guidance Statement No 19 or to Environmental Protection Bulletin No 1.
The following passage appears later in the section of the Assessment Report dealing with offsets:
During the assessment process, the proponent had identified a parcel of land that would satisfy these requirements. The proponent had undertaken measures to assess the environmental values of this land. However, in mid‑2013, due to circumstances beyond its control, this land is likely no longer able to be used as an offset for this proposal. As such, the EPA has recommended conditions 12‑2 to 12‑5 that will allow the proponent to find an alternative offset site to acquire, which must contain a number of environmental values. Prior to construction, the proponent will be required to prepare and submit a Land Acquisition Management Plan for the approval of the CEO of the OEPA. This will ensure that any land proposed for acquisition and management is considered appropriate to be used as an offset for the impacts of this proposal. The recommended conditions also lock in key requirements of this offset including:
•land acquired must contain at least 234 ha of Carnaby's Cockatoo and 219 ha of Red‑tailed Black Cockatoo foraging habitat;
•individual land parcels acquired must be a minimum of 100 ha in size;
•land acquired must contain at least 7.5 ha of Carnaby's Cockatoo and Red‑tailed Black Cockatoo potential breeding habitat; and
•a requirement for the proponent to detail arrangements and funding for management on advice from DPaW.[43]
[43] Department of Parks & Wildlife.
Later in the same section the Assessment Report records:
The EPA has recommended conditions 12‑2 to 12‑5 which requires the proponent to:
•prepare, submit and implement a Land Acquisition Management Plan prior to construction;
•identify the land to be acquired and its values which include at least 7 ha of CCW areas and an appropriate buffer.
The Assessment Report concludes with its recommendations, which include a recommendation that the Proposal may be implemented subject to the conditions and procedures recommended in an Appendix to the Assessment Report. Those conditions are complex and lengthy. For the purposes of these proceedings it is only necessary to refer to the conditions which relate to the environmental offsets proposed. Those conditions are found in item 12 of the relevant Appendix, and relevantly provide:
12-1In view of the significant residual impacts to the environment, including impacts to threatened species, priority flora, fauna habitat, migratory birds, native vegetation, wetlands, Beeliar Regional Park and Bush Forever sites, as a result of implementation of the proposal, the proponent shall undertake the following requirements relating to offsets as outlined in conditions 12-2 to 12-16.
Land Acquisition and Management Plan
12-2Prior to commencement of construction, or as otherwise agreed by the CEO, the proponent shall submit a Land Acquisition and Management Plan to the requirements of the CEO.
12-3The proponent shall implement the Land Acquisition and Management Plan, prior to commencement, or as otherwise agreed by the CEO, until the CEO advises implementation may cease.
12-4The Land Acquisition and Management Plan shall:
(1)identify at least 234 hectares of land to be acquired;
(2)demonstrate that individual land parcels to be acquired are at least 100 hectares in area;
(3)identify the environmental attributes of the land to be acquired which must contain:
(a)at least 234 hectares of ... Carnaby's Cockatoo and ... Red‑tailed Black Cockatoo potential foraging habitat;
(b)at least 7.5 hectares of ... Carnaby's Cockatoo and ... Red‑tailed Black Cockatoo potential breeding habitat;
(c)at least 7 hectares of Conservation Category Wetland areas and an appropriate buffer;
...
12-5Prior to commencement of construction, or as otherwise agreed by the CEO, the proponent shall acquire, or fully fund the acquisition of, the land identified in the approved Land Acquisition and Management Plan for the purpose of conservation.

Second, as I have already observed, the Assessment Report is fundamentally inconsistent with, and indeed contrary to, the policy enunciated in each of Position Statement No 9, Guidance Statement No 19 and Environmental Bulletin No 1. That policy has, as its essential feature, the proposition that if, after all efforts at on site mitigation have been exhausted, the residual environmental impacts of a proposal upon critical assets will be significant, then:
(a)the provision of environmental offsets will not be an appropriate means of rendering the Proposal acceptable; and
(b)there will be a presumption that the EPA will recommend against implementation of the Proposal.
In the Assessment Report, the EPA evaluates the residual impact of the Proposal after all efforts at on‑site mitigation of its environmental impact have been exhausted and concludes that those residual impacts upon critical assets will be significant. In those circumstances, according to the policy, environmental offsets would not be an appropriate means of rendering the Proposal acceptable, and there is a presumption that the EPA would recommend against its acceptance. However, the Assessment Report makes no reference to any presumption against a recommendation that the Proposal be implemented but instead proceeds on the implicit assumption that the Proposal can be rendered acceptable to the EPA if adequate environmental offsets are provided. No attempt is made in the Assessment Report to reconcile the approach taken with the policy enunciated in the three published policy statements to which I have referred. The contrast between the two approaches is so stark as to strongly support an inference that the policy enunciated in those published statements was not taken into account by the EPA in its assessment of the Proposal.
As I have noted, there are portions of Guidance Statement No 19 and Environmental Protection Bulletin No 1 (but not Position Statement No 9) which suggest that there may be a category of case in which the EPA concludes that although the residual environmental impact of a proposal on critical assets is significant, the EPA might assess those impacts as not being so significant as to preclude the use of environmental offsets as a means of rendering the proposal environmentally acceptable. However, there is no evidence that the EPA considered this aspect of the previously published policies, nor is there any reference to this aspect of the policy in any briefing note provided to the EPA in respect of the Proposal, nor is there any reference to this aspect of the policy in the Assessment Report. Nor does the Assessment Report contain any assessment of the degree of the significance of the residual environmental impact of the Proposal which would, of course, be necessary if the EPA were to consider applying this aspect of the policy. For all these reasons, and given that the respondents do not submit that I should conclude the EPA was applying this aspect of the policy, the existence of this aspect of the policy does not support a conclusion that the EPA took the general policy it had enunciated in the three published policy statements into account.
The approach taken by the EPA in the Assessment Report is consistent with that aspect of the policy enunciated in Position Statement No 9 which declares that a different approach will be taken where a project has 'been approved by the State Government', in which case the EPA's attention will be directed to the maximisation of on‑site impact mitigation and the development and implementation of an acceptable environmental offsets package. However, there is no evidence that the Proposal fell within this category, or was considered by the EPA as falling within this category, nor do the respondents contend that the Proposal fell within this category or was considered by the EPA to fall within this category. If there had been any evidence or any contention to this effect, it would have been necessary to consider the lawfulness of this aspect of the policy as there is, on its face, a strong argument to the effect that this aspect of the policy is unlawful, as I pointed out to counsel for the applicants in the course of oral argument. That is because s 8 of the Act expressly provides that the EPA is not subject to the direction of the Minister in the performance of its functions, except to the extent expressly provided in the Act. It follows that in the performance of its function of undertaking environmental impact assessment, the EPA is only subject to direction by the Minister, or requires the approval of the Minister, in the limited specific circumstances expressed in that Part, and which I have identified above. It is a clear inference from the Act as a whole that, except in those limited respects, in undertaking its responsibilities with respect to environmental impact assessment, the EPA is to act independently of executive government. Further and in any event, the expressed views of the government or any Minister of the government with respect to the social utility or desirability of any project or proposal are, on the face of it, irrelevant to the function which the EPA is required to perform under pt IV of the Act, which is focused upon the assessment of the environmental impact of the proposal under consideration and the identification of appropriate conditions and procedures to which its implementation should be subject. Under the structure evident in pt IV of the Act, issues of social utility and desirability are apt for consideration by the Minister when considering the recommendations of the EPA in the light of the process of consultation which the Minister is required to undertake before deciding whether or not the proposal may be implemented, and if so, the conditions and procedures to which its implementation should be subject.
Despite the apparent cogency of the arguments in favour of the conclusion that this aspect of the policy enunciated by the EPA is unlawful, in the circumstances of this case it is unnecessary to resolve that question as no party submits that this aspect of the previously published policy was applicable or was in fact applied by the EPA when considering the Proposal.
Third, as the EPA concluded that the residual environmental impacts of implementation of the Proposal on critical assets after all efforts at on‑site mitigation had been exhausted would be significant, the policy would have had a profound and quite probably determinative effect upon the assessment of the Proposal if it had been applied. In those circumstances, the failure to make any reference whatever to the policy in the Assessment Report, or at any meeting of the EPA within the three years preceding its decision as to the outcome of the assessment, or in any briefing note provided to the EPA, strongly supports the inference that the policy enunciated in the three published statements upon which the applicants rely was not taken into account.
Fourth, although the applicants carry the burden of proving that the EPA failed to take into account a consideration which it was required to take into account in order to succeed on this ground, in the circumstances of this case, the inference that the EPA did not take the policy into account is considerably reinforced by the failure of the EPA to adduce any evidence of any document produced in the course of the assessment of the Proposal in which reference is made to the policy, other than the minutes of the meeting of the EPA on 29 April 2010, and by the failure of the EPA to lead evidence from any officer or member of the EPA to the effect that the policy was taken into account.
Finally on this issue it is appropriate to refer briefly to the written and oral submissions on this topic advanced on behalf of the respondents before the issue was conceded by counsel. In those submissions it was contended that, because reference can be found to the subject matter of the 10 Tests posed in section 5 of Position Statement No 9[98] it can be inferred that the EPA was taking the policy into account in its assessment.
[98] See [52] above.
There are a number of answers to this contention. The first is that any overlap between the topics addressed in the Assessment Report and the subject matter of the 10 Tests enunciated in Position Statement No 9 appears to be coincidental rather than deliberate. Although there is a brief reference to Position Statement No 9 in the Assessment Report, there is no reference to the Tests enunciated in section 5 of that Statement nor is there any attempt to enunciate or answer the Tests posed in that section.
Further, the submission misconceives the intellectual process contemplated by the Tests considered in the context of the policy enunciated in Position Statement No 9. So, if Test 3, 'are residual environmental impacts expected to have a significant adverse impact on critical ... assets?', is answered in the affirmative, as it was in this case, the text of the Position Statement makes clear that environmental offsets will not be considered to be an appropriate means of rendering the Proposal acceptable, and there will be a presumption that the EPA will recommend against implementation. It follows that, in such a circumstance, the other Tests specified in s 5 would have no application. There is nothing in the Assessment Report to suggest that this process of reasoning was undertaken by the EPA.
For these reasons I find that the EPA did not take into account the policy enunciated in each of Position Statement No 9, Guidance Statement No 19, and Environmental Protection Bulletin No 1 in its assessment of the Proposal, and counsel's concession to that effect was properly made.

Miscellaneous issues

There are a number of miscellaneous issues connected with this ground of review which I must address in the interests of completeness.

The specific heads of statutory power for the policy instruments

As I have noted, during the course of oral argument, questions arose with respect to the precise identification of the particular head of statutory power authorising the promulgation and publication of the three relevant policy instruments. Upon reflection, I have concluded that nothing turns upon the identification of the particular head of legislative power authorising each instrument because:
(a)as I have noted, the Act contains a plethora of provisions empowering the EPA to develop and promulgate administrative procedures and policies - unless it is contended that one or other of the policy instruments upon which reliance has been placed in this case was not authorised by one or other of those powers, it is unnecessary to identify the specific powers which correlate to each policy instrument;
(b)the respondents do not contend that publication by the EPA of the three policy instruments relevant to this case was not authorised by one or other of the express powers contained within the Act; and
(c)even in the absence of express legislative power, the majority in Gray held that the legislature can generally be presumed to expect and intend that decision‑makers will develop policies and guidelines in the interests of good government and consistency in the exercise of powers conferred by the legislature.
However, in case a different view is taken elsewhere, in my view the powers conferred by s 122 of the Act, to draw up administrative procedures 'in particular for the purpose of establishing the principles and practices of environmental impact assessment', the power conferred by s 16(j) to 'publish reports on environmental matters generally', by s 16(n) to 'establish and develop criteria for the assessment of the extent of ... environmental harm', the conferral upon the EPA of 'all such powers as are reasonably necessary to enable it to perform its functions' by s 17(1), and the authority to 'exercise such powers ... as are necessary or convenient for the performance of the functions imposed' on the EPA by the Act conferred by s 17(3)(h), are quite sufficient, in combination, to provide express sources of the power to issue the three policy instruments relevant to this case. There is also a cogent argument to the effect that the function of preparing and seeking approval for environmental protection policies specifically authorised by s 16(f) of the Act, and the power to 'consider and make proposals as to the policy to be followed in the State with regard to environmental matters' conferred by s 17(3)(d) of the Act may also provide express authority for the policy instruments, but there is a contrary argument to the effect that the function to which s 16(f) refers is concerned only with environmental protection policies coming within pt III of the Act, and a similar argument to the effect that the power to which s 17(3)(d) refers is concerned with the development of proposals for policy to be adopted by others, rather than the EPA. Because, in my view, the other heads of power to which I have referred are quite sufficient to expressly authorise the development and promulgation of the relevant policy instruments, it is unnecessary to express a view upon those arguments.

The significance of the policy

Again for the sake of completeness, I should note that I have not overlooked the observation made by Mason J in Peko‑Wallsend[99] to the effect that not every consideration that a decision‑maker is bound to take into account but fails to take into account will justify the court setting aside the relevant decision, as a factor might be so insignificant that the failure to take it into account could not have materially affected the decision. However, for the reasons I have already given, the policy enunciated in the three published statements to which I have referred was a matter of the utmost significance to the EPA's assessment of the environmental impact of the Proposal.
[99] Peko-Wallsend (1986) 162 CLR 24, 40..

The policy statements are no longer operative

As I have noted, the three policy statements upon which the applicants rely ceased operation in August 2014. However, the validity of the EPA's assessment of the environmental impact of the Proposal must be assessed by reference to the relevant facts and circumstances at the time the assessment was undertaken and, in particular, at the time the EPA decided to recommend that the Proposal may be implemented subject to specified conditions and procedures. Accordingly, the fact that the relevant policies are no longer operative has no effect upon the invalidity of the EPA's purported assessment.
The evidence is to the effect that all documents published as Guidance Statements are being progressively reviewed and updated as Environmental Assessment Guidelines.[100] Similarly, the evidence is that documents published as Position Statements are being progressively reviewed and updated as Environmental Protection Bulletins.[101]
[100] Affidavit of Naomi Jane Arrowsmith [17] ‑ [18].
[101] Affidavit of Naomi Jane Arrowsmith [21] ‑ [22].
The evidence does not establish all the policy documents published by the EPA which are currently in operation and which are or could be relevant to the assessment of the environmental impact of the Proposal. Accordingly, it is not possible to form any view as to the extent to which the policy enunciated in the three statements upon which the applicants have relied in support of this ground has been maintained, in some form or another, in the policy documents published by the EPA which are currently in operation. It follows that it is not possible for this court to express any meaningful view as to the consequences of its conclusion that the assessment of the environmental impact of the Proposal undertaken by the EPA was invalid, in terms of the steps properly required to now undertake and complete a valid assessment of the Proposal under currently prevailing circumstances.
Put another way, I have concluded that the EPA must take into account all relevant administrative procedures, assessment criteria and policies which it has promulgated and which are operative at the time it undertakes an assessment of the environmental impact of any proposal. However, as the current form of those administrative procedures, assessment criteria and policies are not in evidence, it is not possible for me to express any meaningful view on the extent to which the legal obligation which I have found might necessitate the preparation of another environmental review by the proponent, or a call for further public submissions, although plainly my conclusion will require the EPA to reconsider its decision as to the outcome of the assessment. In any event, it would be undesirable for me to express any view on those issues given that, generally speaking, the validity of administrative actions must be determined retrospectively by reference to what has actually occurred, rather than prospectively by reference to what might or should occur.

Summary and conclusion with respect to this ground of review

For the reasons I have given, I have concluded that:
(a)there is an implication to be derived from the subject matter, scope and purpose of the Act to the effect that the EPA is obliged to take into account any relevant administrative procedures, assessment criteria or policies which it has promulgated as a condition of the valid exercise of its function of undertaking an environmental impact assessment;
(b)in this case the EPA did not take into account the policy enunciated in each of Position Statement No 9, Guidance Statement No 19 and Environmental Protection Bulletin No 1, which policy was not only relevant to, but of the utmost significance to, the assessment of the environmental impact of the Proposal.
It follows that this ground of review must be upheld. It also follows that the Minister's decision to the effect that the Proposal may be implemented subject to specified conditions and procedures, and which was made in reliance upon the invalid report provided to him by the EPA, is also invalid. It will be for the EPA to determine, in the light of these reasons and the current circumstances, what steps are required to undertake and complete an assessment of the environmental impact of the Proposal which conforms to the obligations imposed upon the EPA by the Act.

The adequacy of the EPA's reasons

The third issue raised by the grounds of review is the applicants' assertion that the reasons provided by the EPA in the Assessment Report are inadequate because the Assessment Report fails to deal with the policy enunciated in the three policy statements to which I have referred. In the course of oral argument, counsel for the applicants confirmed that the only respect in which the reasons given by the EPA in the Assessment Report are said to be inadequate is the failure of the EPA to refer anywhere in the Assessment Report to the policy enunciated in the policy statements upon which reliance has been placed, including in particular the failure to address either the presumption that the EPA will recommend against implementation of a proposal which, after all efforts at on‑site mitigation have been exhausted, would involve significant residual impacts upon critical environmental assets, and the failure to address the proposition that in such a case, environmental offsets will not be considered as an appropriate means of rendering the proposal environmentally acceptable.
Because this ground is limited to a failure to provide reasons for not applying the EPA's policy, it has been advanced only in the alternative to the preceding ground in the sense that it is only pressed if the preceding ground is dismissed. That course is appropriate, because plainly enough the EPA could only include in the Assessment Report reference to matters which it had taken into account. If the preceding ground succeeds, as it has, because I have found that the EPA did not take either aspect of the policy upon which reliance is placed in support of this ground into account, it follows that the EPA could not be expected or required to include reasons relating to such matters within the Assessment Report. Put another way, I have concluded when considering the preceding ground that the inadequacy revealed by the Assessment Report[102] is not the reasons enunciated in the Assessment Report, but the inadequacy of the process of assessment which led to the Assessment Report.
[102] And the other evidence to which I have referred.

As the preceding ground has succeeded, it is unnecessary to deal with this ground of review, and there is no occasion to embark upon the interesting question of the extent of the obligation imposed upon the EPA to state the reasons for its conclusions in a report presented to the Minister pursuant to s 44 of the Act.

Were the environmental factors considered in isolation?

The next issue raised by the grounds of review concerns the applicants' assertion that the EPA exceeded the jurisdiction conferred upon it by the Act because it considered each of the key environmental factors which it identified separately and in isolation, rather than in combination.
The legal proposition which underpins this ground is the assertion that pt IV of the Act, and s 44 in particular, require the EPA to assess the Proposal in its entirety, and its recommendation to the Minister must be based upon its assessment of the key environmental factors it has identified in the course of its assessment in their entirety. That proposition should be accepted, and I did not understand the respondents to contend otherwise. It is a proposition which flows naturally and inevitably from the inherent nature of the function performed by the EPA under pt IV of the Act, and its obligation to make a recommendation to the Minister as to whether the Proposal may be implemented. Clearly enough the adequate performance of that function requires a consideration of all the environmental factors identified as relevant to the Proposal, viewed in combination rather than in isolation.
Therefore the critical question which determines the outcome of this ground of review is whether the EPA did in fact only consider each environmental factor separately and in isolation as the applicants assert. The entire basis for that assertion is an inference which is said to arise from the terms of the Assessment Report itself.
As I have noted in the context of the first ground of review, it is a singular feature of the Assessment Report that notwithstanding the EPA's conclusion that the Proposal, if implemented, would have a significant impact upon critical environmental assets even after all efforts at on‑site mitigation had been exhausted, nowhere in the Assessment Report is there any specific reference to the possibility or prospect that this conclusion might lead the EPA to recommend against implementation of the Proposal. Rather, the approach taken throughout the Assessment Report is to identify the residual environmental impacts which remain after all efforts at on‑site mitigation have been exhausted, and then to identify the environmental offsets which are considered to be sufficient to 'counterbalance' those residual impacts. The question is whether that structure of the Assessment Report sustains the inference that the EPA failed to consider each of the key environmental factors in combination, contrary to the legal proposition which I have accepted.
When issues of this kind arise for determination, it is important to remember that when a court is engaged in judicial review of administrative action:
The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.[103]
[103] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 (Neaves, French & Cooper JJ), cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272.
Put another way:
[T]he reasons of an administrative decision‑maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[104]
[104] Minister for Immigration and Ethnic Affairs v Wu Shan Liang, 272.
In this case, when the Assessment Report is viewed as a whole, a conclusion that its terms give rise to an inference that the EPA failed to consider the key environmental factors which it had identified in combination for the purpose of deciding whether it should recommend that the Proposal may or may not be implemented would be to fall into an error of the kind identified in the passages I have just cited.
It would be fanciful to suppose that the members of the EPA were not keenly aware that one of the outcomes of the process of environmental impact assessment which the EPA is obliged to undertake is a recommendation to the Minister as to whether or not the proposal assessed may be implemented. In this case, the summary of the Assessment Report specifically contains a recommendation that 'the proposal be approved subject to the recommended environmental conditions summarised below'.[105] That recommendation follows a portion of the summary in which the residual impacts (after mitigation) of implementation of the Proposal are collected in one paragraph,[106] followed by a paragraph in which all of the environmental offsets proposed are collected in one paragraph.[107] Any inference which might be drawn from the structure of the body of the Assessment Report is rebutted by the consideration of the key environmental factors identified in the body of the Assessment Report in combination with the summary which is at the forefront of the Assessment Report. Accordingly, this ground of review must be dismissed.
[105] Assessment Report, vi.
[106] Assessment Report, iv ‑ v.
[107] Assessment Report, v.

Does the condition empowering the CEO to permit construction to commence before the environmental offsets package has been identified invalidate the Assessment Report?

This ground of review focuses specifically upon the EPA's recommendation that implementation of the Proposal should be permitted subject to Condition 12-2 which, as I have noted, provides:
12.2Prior to commencement of construction, or as otherwise agreed by the CEO, the proponent shall submit a Land Acquisition and Management Plan to the requirements of the CEO.
I understand the reference to 'the CEO' in this Condition to be a reference to the CEO of the Office of the EPA.
The applicants assert that the inclusion of this condition constitutes a constructive failure to exercise the jurisdiction conferred upon the EPA by pt IV of the Act. As I understand the argument, it is asserted that the recommendation that the condition be attached to any approval of implementation of the Proposal is inconsistent with the EPA's conclusion that the Proposal is only environmentally acceptable if environmental offsets in the form of the Land Acquisition and Management Plan are provided. The inconsistency is said to lie in the recommendation of a condition which may result in the offsets never occurring.
This last step in the development of the argument reveals its fundamental flaw, which is the misconception of the effect of Condition 12-2 implicit in the proposition. The components of the Land Acquisition and Management Plan proposed by the EPA are specified clearly and unequivocally in Condition 12‑4. The CEO is not given any power to vary the essential components of that Plan. Accordingly, if the Minister were to impose the conditions recommended by the EPA upon his approval of the Proposal (as he purported to do), Main Roads would be under a legal obligation to acquire and manage land having the characteristics specified in the conditions. The imposition of that legal obligation, which could be enforced if necessary, achieves the relevant components of the environmental offsets proposed by the EPA.
Proposed Condition 12-2 empowers the CEO to specify the requirements of the Land Acquisition and Management Plan to be submitted by the proponent. When that condition is read in the context of proposed Condition 12‑4, that power must be limited to the form and contents of the information provided to the CEO, not the substance of the Plan, which is specified in unequivocal terms in Condition 12‑4.
Condition 12-2 also authorises the CEO to agree that the proponent may commence construction prior to submission of the Land Acquisition and Management Plan. The power which would be conferred upon the CEO if such a condition were imposed is limited to the time at which the Plan is to be provided to him, and does not extend to the question of whether the proponent is obliged to acquire and manage land having the characteristics specified in Condition 12‑4. At the risk of repetition, Condition 12‑2 does not confer upon the CEO any power to dispense with the obligation imposed upon the proponent to acquire and manage land having those characteristics and qualities.
In the course of argument in support of this ground of review, it was contended on behalf of the applicants that it was difficult if not impossible to identify any basis upon which the CEO could validly exercise the discretion conferred by Condition 12‑2 without undermining the fundamental basis upon which the EPA was recommending that the Proposal may be implemented. Again, this argument appears to me, with respect, to proceed upon a misconception of the nature and effect of the powers conferred upon the CEO by the recommended condition. To take an example which I put to counsel in the course of argument, if a condition in the terms of Condition 12‑2 were to be imposed upon the approval of the Proposal, the proponent might approach the CEO for permission to carry out minor works, perhaps in preparation for more major works, such as, for example, the installation of survey pegs marking the areas in which particular constructions were to take place in the future. It could well be argued that such work would constitute the commencement of construction. If the CEO was satisfied that the works proposed would not involve any significant harm to the environment and/or that the submission of a satisfactory Land Acquisition and Management Plan was imminent, it would be entirely reasonable to agree that the works proposed could proceed, and such a course would be entirely consistent with the reasoning of the EPA evident in the Assessment Report.
This ground of review is based on a misconception as to the nature and effect of proposed Condition 12‑2. The recommendation that such a condition be imposed in any decision that the Proposal may be implemented is entirely consistent with the reasoning enunciated in the Assessment Report and does not involve any constructive failure to exercise the jurisdiction conferred upon the EPA by pt IV of the Act. Accordingly, this ground of review must be dismissed.

Conclusion

For these reasons I have concluded that all grounds of review should be dismissed other than the ground based upon the EPA's failure to take into account a mandatory relevant consideration. For the reasons I have given, that ground of review should be upheld. It follows from the success of that ground that the Assessment Report issued by the EPA in respect of the Proposal is invalid. It also follows that the Minister's decision that the Proposal may be implemented subject to specified conditions made in reliance upon the Assessment Report is also invalid. It will be for the EPA to determine, in the light of these reasons and current circumstances, what steps must now be taken to undertake and complete an assessment of the environmental impact of the Proposal in conformity with the legal obligations imposed upon the EPA by the Act.
I will invite counsel to provide submissions with respect to the most appropriate form of relief to give effect to these conclusions.