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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASC 482
Decision Date: 16 DECEMBER 2015

CaseChat Overview and Summary

Save Beeliar Wetlands (Inc) sought judicial review of a decision by the Environmental Protection Authority (EPA) in Western Australia, which had approved a development proposal subject to certain environmental conditions. The applicants argued that the EPA had made a jurisdictional error by not asking itself the correct questions under the Environmental Protection Act 1986 (WA) and had failed to take into account its own published policies. Additionally, they contended that the EPA had not provided adequate reasons for its decision and that the decision was invalid as it was made in reliance on an invalid report. The court was required to determine whether the EPA had asked itself the correct questions, whether it had failed to consider relevant mandatory considerations, and whether it had provided adequate reasons for its decision.

The court held that the EPA had asked itself the correct questions and had considered the relevant mandatory considerations. It found that the EPA's recommendation to approve the proposal subject to certain conditions, including the submission of a Land Acquisition and Management Plan, was consistent with its conclusion that the proposal was environmentally acceptable if the offsets were provided. The court also held that the EPA's reasons were adequate and that the decision was not invalid as it was not made in reliance on an invalid report. The court dismissed the applicants' claims.

The court held that the EPA had not made a jurisdictional error in approving the development proposal subject to certain environmental conditions. It found that the EPA had asked itself the correct questions and had considered the relevant mandatory considerations. The court held that the EPA's recommendation to approve the proposal subject to certain conditions, including the submission of a Land Acquisition and Management Plan, was consistent with its conclusion that the proposal was environmentally acceptable if the offsets were provided. The court also held that the EPA's reasons were adequate and that the decision was not invalid as it was not made in reliance on an invalid report. The court dismissed the applicants' claims in their entirety.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.