Save the Ridge Inc v Commonwealth

Case [2005] FCAFC 203

FEDERAL COURT OF AUSTRALIA

Save the Ridge Inc v Commonwealth [2005] FCAFC 203

ENVIRONMENT – policy for the planning of national and arterial roads systems – National Capital Plan – National Capital Planning Authority – Commonwealth action – whether action by authority prohibited under Environment Protection and Biodiversity Conservation Act 1999 (Cth) – whether action includes making of amendments to plan – whether action will have an actual or likely impact on environment – no finding of facts by primary judge – whether action is a governmental authorisation and excluded from definition of action under the Act

PRACTICE AND PROCEDURE – Federal Court Rules O 29 r 2 – formulation of separate or preliminary questions – difficulties associated with procedure

WORDS AND PHRASES – 'action'

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 7, 28(1), 523, 524(2), 528
Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) s 10, 11, 12, 14, 15, 19, 21, 22
Federal Court Rules O 29 r 2

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 referred to
Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002 referred to
Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002 referred to
Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 referred to
Margarula v Minister for Environment (1999) 92 FCR 35 cited
Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190; (2004) 139 FCR 24 referred to
Rainsford v State of Victoria [2005] FCAFC 163 referred to
Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 cited
SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 referred to
Soufflet Beheer v AWB Limited [2004] FCA 518 referred to

SAVE THE RIDGE INC v COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN CAPITAL TERRITORY
ACD 7 OF 2005

BLACK CJ, MOORE AND EMMETT JJ
SYDNEY (HEARD IN CANBERRA)
16 SEPTEMBER 2005


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 7 OF 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SAVE THE RIDGE INC (ASSOCIATION NO A03329)
APPELLANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

AUSTRALIAN CAPITAL TERRITORY
SECOND RESPONDENT

JUDGES:

BLACK CJ, MOORE AND EMMETT JJ

DATE OF ORDER:

16 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed in part.

2.The answer to the first preliminary question given by the primary Judge in proceedings ACD 16 of 2004 be set aside and the following answer be substituted:

(a) Question: Do the activities identified in the particulars set out in paragraph 3 of the grounds of the amended application constitute, individually or collectively, "action" for the purposes of the Environment Protection and Biodiversity Conservation Act 1999?

Answer:  Inappropriate to answer.

3.The appeal otherwise be dismissed.

4.Any submissions on costs of the appeal be filed within fourteen days.

Note:    Settlement and entry of orders is dealt with in…

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AGLC
Save the Ridge Inc v Commonwealth [2005] FCAFC 203
Case
[2005] FCAFC 203
Decision Date

CaseChat Overview and Summary

Save the Ridge Inc initiated legal proceedings against the Commonwealth, contending that the government's proposed construction of the Extension and its amendment of the National Capital Plan would significantly impact the environment. The case was heard in the High Court of Australia. The central legal issues revolved around whether the proposed construction and the amendment to the National Capital Plan constituted "action" under the Environment Protection and Biodiversity Conservation Act 1999, and if so, whether such action might have a significant environmental impact.

The Court examined the nature of the activities proposed by the Commonwealth. It held that while the construction of the Extension could potentially have a significant impact on the environment, the executive or quasi-legislative activity of amending the National Capital Plan was unlikely to result in a significant environmental impact. The Court found that the mere preparation and promulgation of amendments to the National Capital Plan could not have a significant impact on the environment. Consequently, it was deemed futile to allow an action to proceed to determine whether such activity might have a significant impact. The Court concluded that the appeal should be dismissed with costs.

The Court issued specific orders regarding the appeal. It allowed the appeal in part, set aside the answer to the first preliminary question given by the primary judge, and substituted a new answer stating that it was inappropriate to answer the question. The appeal was dismissed in all other respects. The Court also directed that any submissions on the costs of the appeal be filed within fourteen days.

Orders

Orders of the court

1. The appeal be allowed in part.

2. The answer to the first preliminary question given by the primary Judge in proceedings ACD 16 of 2004 be set aside and the following answer be substituted:

(a) Question: Do the activities identified in the particulars set out in paragraph 3 of the grounds of the amended application constitute, individually or collectively, "action" for the purposes of the Environment Protection and Biodiversity Conservation Act 1999?

Answer: Inappropriate to answer.

3. The appeal otherwise be dismissed.

4. Any submissions on costs of the appeal be filed within fourteen days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLACK CJ
The work that would be necessary for the construction of the Extension would clearly be action that could have an impact on the environment. That impact may well be a significant impact. The executive or quasi legislative activity involved in the promulgation of an amendment to the National Capital Plan could have an impact on the environment, in so far as that activity involves the use of materials and the consumption of energy needed to produce electricity to operate office equipment and the like. However, such an impact could scarcely ever be characterised as significant. While the question of whether such an activity might have a significant impact on the environment is a factual matter, it would be futile to permit an action to proceed in order to determine whether such activity is likely to have a significant impact. It is patently obvious that such activity would not have a significant impact on the environment: the mere preparation and promulgation of amendments to the National Capital Plan could not have a significant impact on the environment. CONCLUSION It follows that the appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: BLACK CJ

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