Tarkine National Coalition Incorporated v Director, Environment
[2023] TASSC 3
•3 March 2023
[2023] TASSC 3
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Tarkine National Coalition Incorporated v Director, Environment Protection Authority [2023] TASSC 3 |
| PARTIES: | TARKINE NATIONAL COALITION INCORPORATED |
| v DIRECTOR, ENVIRONMENT PROTECTION AUTHORITY and VENTURE MINERALS LTD | |
| FILE NO: | 1990/2021 |
| DELIVERED ON: | 3 March 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 27–29 September 2022 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Environment and Planning – Environmental planning – Development control – Consents, approvals and permits – Lapse of consent – Whether development has substantially commenced – Open cut hematite mine – Purchase of equipment and clearing of site.
Land Use Planning and Approvals Act 1993 (Tas), s 53(5).
Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; Day v Pinglen Pty Ltd (1981) 148 CLR 289;
North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 81 WN (NSW) (Pt 1) 35;
Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61; Hunter Development Brokerage
Pty Ltd v Cessnock City Council [2005] NSWCA 169, 63 NSWLR 124, followed.
Aust Dig Environment and Planning [240]
REPRESENTATION:
Counsel:
Applicant: P R D Gray KC, S Molyneux First Respondent: P Turner SC Second Respondent: K Cuthbertson SC, R Chaile Attorney-General: P Turner SC
Solicitors:
Applicant: Environmental Defenders Office First Respondent: Solicitor-General Second Respondent: Davis Advisory Pty Ltd Attorney-General: Solicitor-General
| Judgment Number: | [2023] TASSC 3 |
| Number of paragraphs: | 56 |
Serial No 3/2023
File No: 1990/2021
| TARKINE | NATIONAL | COALITION | INCORPORATED | v | DIRECTOR, |
ENVIRONMENT PROTECTION AUTHORITY and VENTURE MINERALS LTD
| REASONS FOR JUDGMENT | BLOW CJ 3 March 2023 |
1 The applicant, Tarkine National Coalition Incorporated, has applied for relief under the Judicial Review Act 2000 in relation to a decision of the Director of the Environment Protection Authority ("the EPA") made on 15 June 2021. This decision related to a permit that had been issued to the second respondent, Venture Minerals Ltd, pursuant to s 57 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act"). The permit related to the development and use of a hematite mine known as the Riley Creek Mine, located off Pieman Road, 18 kilometres west of Tullah. The Director decided to issue an Environment Protection Notice ("EPN") varying the conditions of the permit by removing a restriction that required mine vehicles to transport ore from the mine only during daylight hours. The condition had originally been imposed to reduce the risk of roadkill.
2 The applicant contends that the decision is invalid and should be quashed or set aside on three
grounds:
• It contends that, as at the date of the decision, the permit was no longer in force, having lapsed pursuant to s 53 of the LUPA Act (Ground 1). • It contends that the Director misconstrued or failed to apply certain applicable statutory objectives (Ground 2). • It contends that the Director exceeded his statutory power to vary the conditions of the permit by making a decision that purported to change the fundamental use or development that had been authorised by the permit (Ground 3). 3 The Director filed a notice of submission advising that he submitted to any order that the Court may make upon the hearing of this application. The Attorney-General intervened pursuant to s 39 of the Judicial Review Act. At the start of the hearing her counsel informed me that she took no interest in ground 1, and was in general agreement with the submissions of Venture as to grounds 2 and 3. He sought and obtained leave to withdraw.
Decisions relating to the permit
4 The Riley Creek Mine is within the municipal area of the West Coast Council. That council is the planning authority for the relevant area for the purposes of the LUPA Act. Venture applied to that council for a permit under s 57 of the LUPA Act in October 2012. The council referred the application to the Board of the EPA pursuant to a requirement in s 25(1)(b) of the Environmental Management and Pollution Control Act 1994 ("the EMPC Act"), and the EPA subsequently provided an environmental assessment report to the council. On 21 May 2013 the council granted a planning permit pursuant to s 57 of the LUPA Act.
5 The permit granted by the council did not contain a condition restricting the movement of ore trucks to daylight hours. The EPA report recorded that Venture had given certain commitments relating to the Tasmanian devil and the spotted-tailed quoll, including a commitment that any road transport along the Murchison Highway would be during daylight hours only. The council apparently had seen no need to impose a permit condition requiring Venture to honour any such commitment.
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6 The applicant had made a representation to the council opposing the granting of the permit. It appealed from the council's decision to the Resource Management and Planning Appeal Tribunal. On 24 September 2013 that tribunal approved the permit, subject to varied conditions: Tarkine National Coalition v West Coast Council and Venture Minerals Ltd [2013] TASRMPAT 103. At [108], amongst other conditions, it required a condition restricting the cartage of ore on the Pieman Road to "daylight hours and not earlier than half an hour after sunrise, and not later than half an hour prior to sunset." No such condition was imposed in relation to empty trucks returning to the mine site. That omission may have gone unnoticed. The council subsequently re-issued the permit, with varied conditions as required by the tribunal.
7 When an appeal has been instituted against a planning authority's decision to grant a permit, the permit does not take effect until the determination or abandonment of the appeal: LUPA Act, s 53(3). Accordingly, the permit took effect on the date of the tribunal's decision, namely 24 September 2013.
8 Section 53(5)(a)(ii) of the LUPA Act provides as follows:
"(5) If the use or development in respect of which a permit was granted is not
substantially commenced, the permit lapses –(a) at the end of a period of 2 years from – (i) the date on which the permit was granted; or
(ii) if an appeal has been instituted against the planning authority's decision to grant the permit, the date of the determination or abandonment of the appeal…".
9 Section 53, as in force at the relevant times, went on to provide that, upon the expiry of the original two-year term of a permit, its holder had an opportunity to apply for an extension of two years, and then a second opportunity to apply for another extension of two years. The result is that the permit would permanently lapse six years after its commencement if the use or development for which it had been granted had not substantially commenced.
10 On 18 August 2015 the West Coast Council granted Venture a two-year extension of the period during which the use or the development was to be substantially commenced, pursuant to s 53(5A). On 26 September 2017 it granted a second such extension pursuant to s 53(5B). As a result, unless the development to which the permit related had substantially commenced by 24 September 2019, the permit then lapsed. The applicant contends that substantial commencement had not occurred by that date, and that the permit therefore lapsed. Venture contends that substantial commencement had occurred before that date, and that the permit therefore did not lapse.
11 On 21 October 2019 the West Coast Council sent an email to Venture to the effect that it had determined that the requirement as to substantial commencement had been met. Any such determination did not involve an exercise of a statutory power. The email did no more than express a view as to a question of fact.
12 On 15 June 2021, following representations from Venture, the Director made the decision under review and issued an EPN which purported to vary the permit conditions by removing the original prohibition on the transportation of ore at night and imposing less onerous requirements. The EPN contained the following new conditions as to roadkill:
"4 Road Kill Management and Monitoring 4.1 All vehicles associated with the activity must only travel later than half an hour after sunrise, and earlier than half an hour before sunset unless:
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4.1.1 vehicle speed does not exceed 60kph when travelling along the
Pieman Road;
4.1.2 the vehicle is equipped with headlights and high beam lights that are used in a manner that allows drivers greater opportunity to see and avoid wildlife;
4.1.3 the vehicle is equipped with horns that are used to disperse
wildlife;
4.1.4 drivers have completed a driver education program ('the driver education program') in roadkill minimisation that includes but not limited to: the importance of reducing speed; the appropriate use of high beam lights and horns to avoid wildlife impacts; actions to be taken when animals are sighted on roadways; actions to be taken when roadkill occurs; and reporting obligations relating to animal sightings and roadkill events;
4.1.5 virtual fencing is installed, operational and used as a roadkill mitigation measure in accordance with and at locations indicated by Figure 1 and Table 1 ('roadkill hotspots') in the document entitled Roadkill Minimisation Plan prepared by Pitt & Sherry and dated 4 November 2019 or as otherwise approved in writing by the Director;
4.1.6 Signs are in place and are clearly visible to drivers upon their approach to roadkill hotspots identified in the document entitled Roadkill Minimisation Plan prepared by Pitt & Sherry and dated 4 November 2019 or as otherwise approved in writing by the Director. The signs must advise drivers to sound their vehicle's horn upon approach to the roadkill hotspots.
4.1.7 Emergency circumstances exist. Such emergency circumstances must be documented and held in a register. This register must be made available to an Authorized officer upon request.
4.2
At all times, all trucks (whether they are involved in the transport of ore or not) and buses associated with the activity must not exceed 60 km/hour when travelling on the Pieman Road.
4.3
Trucks involved in the transport of ore from the Riley Mine to the Port of Burnie must only travel along the Pieman Road, Murchison Highway, Ridgley Highway, Massy-Greene Drive, Bass Highway, to the Port of Burnie and then return to the Riley Mine via the same route, unless otherwise approved in writing by the Director.
4.4
Trucks involved in the transport of ore from the Riley Mine to the Port of Burnie and staff buses referred to in these conditions must be equipped with a device that records vehicle speed, location and time so as to enable verification that the vehicle is not travelling at a speed in excess of speed requirements.
4.5
Monitoring must be undertaken of relevant data from vehicles that are equipped with a device that records vehicle speed, location and time . If exceedance of speed restrictions is detected, actions directed at changing driver behaviour to ensure adherence to speed restrictions must be implemented in a timely manner.
4.5.1 Records of speed restriction monitoring must be kept and provided
to an Authorized Officer upon request;
4.5.2 Records of actions taken to change driver behaviour must be kept. 4 No 3/2023
4.6
The driver education program referred to in these conditions must be updated and delivered in a timely manner to reflect any change to roadkill mitigation measures .
4.7
All mine staff travelling to the land to perform work must do so on the staff bus service operated from Tullah. Staff must not be permitted to access the Riley Mine for work purposes using private vehicles unless in case of emergency. For the purposes of this condition:
4.7.1 A reference to mine staff includes a reference to persons employed by contractors engaged by the person responsible for the activity to undertake work on the site. 4.7.2 A reference to mine staff does not include contractors specifically engaged by the person responsible for undertaking repairs in the event of plant and equipment breakdown.
4.7.3 A class of activities includes, but is not limited to, a class of
activity specified by the Director in writing.
4.7.4 All travel in emergency circumstances must be documented and held in a register. This register must be provided to an Authorized Officer upon request.
4.8 To further discourage animals from scavenging and lingering on roadways at the Riley Mine site, the occurrence of standing water must be reduced by installing table drains. Vegetation at the Riley Mine site must be managed to improve visibility of animals to drivers. 4.9 All road kill must be removed from the road between the Riley Infrastructure area and the Murchison Highway each day before nightfall. If roadkill is to be disposed of where it is found, it must be placed at least 250 metres from the roadside. 4.10 The species location and date of removal must be recorded for all roadkill. A photograph of every Tasmanian Devil found dead on the road must be taken in addition to recording the location and removal date."
13 The power exercised, or purportedly exercised, by the Director was conferred by s 44(1)(d) of the EMPC Act. That provision says that, "Where the Director is satisfied that in relation to an environmentally relevant activity… it is desirable to vary the conditions or restrictions of a permit … the Director may cause an environment protection notice to be issued and served on the person who is or was responsible for the environmentally relevant activity."
The facts as at 24 September 2019
14 The hematite deposit at Riley Creek is a surface deposit with a depth of about 3 metres. It covers about 1.2 square kilometres of undulating hills and valleys. In a "Development Planning and Environmental Management Plan" dated 26 October 2012, Venture described its proposed mining activities as follows:
"The area will be mined in 25 m wide panels along the length of the resource using excavators and trucks. As mining progresses along the panel, clearing of vegetation and ground cover will commence in the next panel, with all material cleared immediately spread across recently mined out areas. Any large timber debris will be mulched and also spread across the recently mined area.
…
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The mined ore will be crushed and screened on site. Drying of the ore will be undertaken using a portable rotary dryer when necessary. Crushed ore will be loaded onto trailer trucks and transported east along the Pieman Road to a rail loading facility at Bastyan Dam, approximately 12 km away. The ore will then be railed to the port of Burnie for export.
The construction of the rail loading facility is a separate project by others. If product transport is required before the rail loading facility becomes available, product will be trucked to Burnie via the Murchison Highway. To minimise roadkill risks for Tasmanian fauna, this road transport would be limited to daylight hours only, which would restrict production to an equivalent 600,000 tonnes per year.
…
The mine will have basic support infrastructure including parking, workshops, offices, ablutions, potable and non-potable water tanks, diesel powered generators, storage buildings and areas, and re-fuelling zones. All buildings will be transportable and temporary."
15 According to that plan, the size of the resource was estimated to be around 2 million tonnes of ore. As at 24 September 2019 the routine extraction of ore from the site had not commenced. In fact ore had only been extracted during a short period in November and December 2013. At that time 72 pits were dug, and 50 Kg of ore was removed and retained from each of those pits. The samples then extracted were used for the purposes of assay, off-take negotiations, and beneficiation analysis.
16 By 24 September 2019 the following work had been undertaken by Venture and its contractors at the mine site:
• The site office pad had been prepared with levelling and the laying of gravel. • A pre-clearance survey had been completed. • A transportable building had been installed for use as a site office and meeting room. • A transportable building had been installed for use by one person as a gatehouse. • Vegetation had been cleared around the road entrance to the mine and also for a truck washdown bay and for a carpark at the site entrance. • In or around early September 2019 works were done to establish a 2 kilometre main haul road for the mine. 17 In addition to the works undertaken at the mine site, Venture had by 24 September 2019 entered into contracts and incurred expenditure in relation to the development of the mine site, as follows:
•
Venture had taken delivery of all major washing and screening plant items and components for the mine, including crushers, blade mills, a de-watering screen and feeders. These cost a little over $1.6 million and were being held in storage off-site in Victoria and Tasmania.
• Thickening tanks had been constructed and were ready for shipment to Tasmania. •
By 28 May 2014 Venture had commissioned and received a second pre-clearance survey of the mine.
•
On or about 2 May 2019 Venture signed a binding terms sheet for the mine off-take with a company based in Singapore.
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•
On or about 16 May 2019 Venture engaged a firm to prepare an updated mining/feasibility study and to provide project management and project execution services at the mine. The updated mining/feasibility document was completed and released to the market in or about August 2019.
• By August 2019 Venture had appointed a general manager for operations at the mine. •
During August 2019 Venture obtained building and plumbing permits for works at the mine site. The building permit related to office amenities, a workshop, a gatehouse and a washing/crushing plant.
•
Pursuant to an arrangement with Venture, TasRail spent $1.9 million on constructing two rail passing loops on its Melba line and a sampling system at the Port of Burnie. Venture apparently undertook to reimburse half of that expenditure from revenue generated by production from the mine.
Substantial commencement
18 It is common ground that the question whether substantial commencement had occurred by 24 September 2019 is a question of jurisdictional fact which this Court is required to determine. There is no statutory definition of substantial commencement. It is necessary to determine whether the development authorised by the permit, as distinct from the use of the site for mining production, had substantially commenced as at the critical date.
19 The LUPA Act draws a distinction between "development" and "use". In s 3(1) of that Act, the following definitions appear: "development includes –
(a) the construction, exterior alteration or exterior decoration of a building;
and
(b) the demolition or removal of a building or works; and
(c) the construction or carrying out of works; and
(d) the subdivision or consolidation of land, including buildings or airspace;
and
(e) the placing or relocation of a building or works on land; and
(f) the construction or putting up for display of signs or hoardings –
but does not include any development of a class or description, including a class or description mentioned in paragraphs (a) to (f) , prescribed by the regulations for the purposes of this definition.
…
use, in relation to land, includes the manner of utilising land but does not include the
undertaking of development".
20 The permit in this case was one for both development and use of the relevant land for an open cut hematite mine. The use of the land for hematite mining had not commenced. The issue for determination is therefore whether the development of the relevant land for an open cut hematite mine had substantially commenced.
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21 The clearing of vegetation at the mine site fell within par (c) of the definition of "development" because it constituted the "carrying out of works". That is because "works" is defined in s 3(1) of the LUPA Act as follows:
"works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil, but does not include forest practices, as defined in the Forest Practices Act 1985, carried out in State forests."
22 The acquisition and storage of machinery and the incurring of liabilities in respect of surveys, railway facilities and future development would appear not to fall within the scope of the definition of "development". However Venture contended that those matters were relevant to the question of whether development had substantially commenced.
23 "Commencement", as distinct from substantial commencement, occurs when the building, engineering or construction work relating to a development is physically commenced: Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170 at 176; Green v Kogarah Municipal Council [2001] NSWCA 123, 115 LGERA 231 at [76]; Auscon Pty Ltd v Town of Cambridge [2021] WASAT 116 at [52]. Among other things, the site office area had been levelled and the transportable building to be used as a meeting room and site office had been installed before the relevant date. Commencement had therefore occurred. The issue is whether substantial commencement had occurred.
24 In Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350, the High Court had to decide whether the building of a block of home units had "substantially commenced" as at a particular date within the meaning of legislative provisions relating to development consent and building approval. Gibbs J, with whom Barwick CJ, Stephen and Mason JJ agreed, said the following, at 360- 361:
"Clearly the work and development which s 315 of the Act and cl 38(2) of the Ordinance require should have been substantially commenced is that to which the approval or consent itself refers, and it would seem to follow that work or development is not commenced when nothing more has been done than acts preparatory to the work or development which is the subject of the approval or consent …. The question whether the work or development has been substantially commenced is an objective one depending on what in fact has been done rather than on the intention with which it was done …, and the circumstance that the work in October was done for the purpose of keeping the approval alive is not inconsistent with the conclusion that the work was substantially commenced. The expression 'substantially commenced' is not altogether clear and precise. Sometimes the use of the word 'substantially' has the effect of requiring a comparison to be made between a part and the whole, and this may well be so, for example, when the phrase 'substantially completed' is used. However, to say that work has been 'substantially commenced' does not, in the natural meaning of those words, suggest that what has been done forms a large proportion of the whole work; something can be substantially commenced although it has not been substantially completed. For example, if, in the case of a large city building, work had been done that was in itself very extensive and costly, it would accord with ordinary usage to say that work had been substantially commenced, although what had been done formed only a small proportion of the whole work. The test to be applied for the purposes of s 315 and cl 38 (2) is whether the work or development the subject of the approval or consent has been begun by the performance of some substantial part of that work or development."
25 In Day v Pinglen Pty Ltd (1981) 148 CLR 289, the High Court held that the building of a large residential building had not substantially commenced. A concrete slab representing 11% of the ground floor area had been poured for the purpose of keeping the building approval alive, but no other work had been undertaken, no detailed drawings had been prepared, no building contract had been entered into, and no tenders had been called for. The Court, (Mason, Murphy, Aickin, Wilson and Brennan JJ) said the following, at 299:
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"We come then to this question of substantial commencement. As has been said, it is a question of degree. The facts must be such as to lead naturally to the conclusion that the commencement is not merely evident, but is substantial, that is, of considerable amount. The statutory purpose must be borne in mind. A substantial commencement involves a commitment of resources of such proportions relative to the approved project as to carry the assurance that the work has really commenced."
26 There are a number of reported cases as to the relevance of off-site work and survey work to the determination of issues as to commencement or substantial commencement. In North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 81 WN (NSW) (Pt 1) 35, Hardie J held, at 38, that substantial commencement of building work could not occur unless "some work has been done on the site which is referrable to and only referrable to the particular building structure that has been approved". His Honour went on to say that "the commencement must be a real or actual one as distinct from preparatory work and as distinct from a notional or equivocal or sham commencement".
27 In Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61, Hutley JA, sitting as a single judge, referred to that judgment and said the following, at 69:
"This passage contains the test to be applied by a judge of first instance, and the proper way to apply the test implied in this passage was the subject of much discussion. It was suggested that this passage means that in determining whether work had been substantially commenced work off site was to be disregarded, such work being preparatory work. Though the passage lays it down that there has to be work done on the site for there to be substantial commencement, it does not mean that work done off the site which is referable to a particular building or structure is to be disregarded. Such work, though preparatory work in one sense, can be part of the unequivocal step indicating that the building has been commenced.
The law is not compelled to disregard the transformation in building practice brought about by prefabrication on a large scale and the development of the means of erecting buildings in situ by the assembly of prefabricated sections, e.g, the replacement of the erection of masonry on the site by precast sections placed in position by high cranes.
It would be ridiculous to disregard prefabricated work, or firm contracts for prefabricated work, in determining whether the building is substantially commenced, as in such work the great bulk of the expenditure on the building work may be made. Under the Liverpool Planning Scheme Ordinance the approval may only last for twelve months, unless the erection is substantially commenced within that time. Of that time much could well be spent in off site work to enable the building work to begin. A small amount of work on site may well be preceded by a great amount of work.
The distinction between preparatory work and other work is that work leading up to the making of the building contract is preparatory work, work which is part of the contract to erect is not preparatory work. Design work for incorporation in the contract is preparatory work, design work in consequence of the contract is not. Preparatory work is not work off site.
The erection of a structure has not substantially commenced if all that has happened is that planning is started to enable a contract to be let or the work of erection to be started but, provided some contract work has been done on site, all work which is part of the contract can be looked at to answer the question."
28 That passage was cited with approval by Tobias JA, with whom Santow JA and Stein A-JA agreed, in Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169, 63 NSWLR 124 at [39].
29 The amended permit that was issued as a result of the tribunal's decision in 2013 specified that the use and development were to be substantially in accordance with, among other things, the
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Development Proposal and Environmental Management Plan that I have referred to. Thus the approved development included the construction or installation of equipment for the crushing, screening and drying of mined ore, and for its loading onto trucks, as well as the construction of "infrastructure including parking, workshops, ablutions, potable and non-potable water tanks, diesel powered generators, storage buildings and areas, and re-fuelling zones".
30 After analysing the evidence as to the sequence of events between September 2013 and June 2014, I have come to the conclusion that the development authorised by the amended permit had substantially commenced by 6 June 2014.
31 As I have said, quantities of ore were removed from 72 pits during a short period in November and December 2013. The removal of that ore constituted preparatory work since the purpose of the work was to obtain samples for use for the purposes of assay, off-take negotiations, and beneficiation analysis. A great deal of material was removed from the 72 pits, but the bulk of that material was used to backfill the pits. They were backfilled and rehabilitated by a contractor using an excavator.
32 Venture's next significant step was to take delivery in Australia of equipment which its managing director, Mr Radonjic, described in an affidavit as "all major washing and screening plant items and components, including crushers, blade mills, de-watering screen and feeders". Venture also incurred expenditure on the construction of thickening tanks. By the end of December 2013 those tanks had been completed and were ready for shipment to Tasmania. The total expenditure on equipment that was in storage for the Riley Creek Mine was a little over $1.6 million by the end of December 2013.
33 On 4 April 2014, the West Coast Council issued building and plumbing permits to a contractor for the construction of new office and staff buildings, stormwater and sewer plumbing, and an effluent storage tank for the Riley Creek Mine.
34 From 28 May 2014 to 6 June 2014, a contractor cleared 1.4 hectares of land at the mine site for the purpose of installing the offices, a workshop, the processing plant, the gatehouse, sediment sumps, and devil and den cameras. Tracks were created around the perimeter of the plant site and to a hill referred to as the "communications hill". An area of protected flora was delineated, and the main haul road was widened. Venture paid a contractor $28,212 for all that work. That sum was one component in a monthly progress claim totalling $203,001.
35 This project had similarities to the erection of a prefabricated building, as considered by Hutley JA in Liverpool City Council v Home Units Australia Pty Ltd (above). A relatively small amount of work on site was preceded by very substantial expenditure off site. The work that had been done on site formed only a small proportion of the whole work of setting up a productive hematite mine but, in the light of the evidence as to the quantity and value of mine equipment purchased by that time for the mine, it should be regarded as the substantial commencement of the development.
36 The development of the hematite mine was interrupted after 6 June 2014 as a result of litigation in the Federal Court and a drop in the price of iron ore. The applicant had applied to the Federal Court for judicial review of a ministerial decision made under Commonwealth legislation. On 15 May 2014 Tracy J dismissed that application: Tarkine National Coalition Incorporated v Minister for the Environment [2014] FCA 468, 202 LGERA 244. However the applicant appealed to the Full Court, and the appeal was not determined until 26 June 2015: Tarkine Natural Coalition Incorporated v Minister for the Environment [2015] FCAFC 89, 233 FCR 254. On 19 August 2014 Venture issued an ASX announcement advising that it was suspending its operations at the Riley site because of the "operational risk associated with on-going appeals against the Project's approvals as well as an unfavourable broader economic environment". However I am satisfied that substantial commencement
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had occurred before Venture decided to suspend operations in relation to the development. Ground 1
must therefore fail.
Statutory objectives (Ground 2)
37 As I have said, the Director made the decision under review pursuant to s 44(1)(d) of the EMPC Act. In exercising that power, he was required by s 8 of that Act to further certain statutory objectives. Section 8 reads as follows:
"8 Objectives to be furthered It is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or to exercise the power in such a manner as to further the objectives set out in Schedule 1 ."
38 Part 1 of Schedule 1 to that Act is entitled "Objectives of the Resource Management Planning System of Tasmania". Identical objectives are to be found in schedules to various other statutes. By virtue of cl 1(1) of that Part, one of the statutory objectives is as follows:
"To promote the sustainable development of natural and physical resources and the
maintenance of ecological processes and genetic diversity".
39 Part 2 of Schedule 1 is entitled "Objectives of the Environmental Management and Pollution Control System Established by this Act". Clause 3 of that Part relevantly contains the following:
"3 The objectives of the environmental management and pollution control system established by this Act are, in support of the objectives set out in Part 1 of this Schedule –
(a) to protect and enhance the quality of the Tasmanian environment; and
…
(h) to adopt a precautionary approach when assessing environmental risk to ensure that all aspects of environmental quality, including ecosystem sustainability and integrity and beneficial uses of the environment, are considered in assessing, and making decisions in relation to, the environment; and
…
(k) to co-ordinate all activities as are necessary to protect, restore or improve the
Tasmanian environment."
40 The applicant contends that the Director did not have regard to the relevant Schedule 1 objectives, particularly the one relating to a precautionary approach, when making the decision under review; that he thereby erred in law; and that the decision under review is invalid as a result.
41 The Director's decision was accompanied by a statement of reasons as required by s 44(8) of the EMPC Act. In that document he said the following, at [6]:
"I must exercise my power to vary the Permit in such a manner as to further the objectives in Schedule 1 of the Environmental Management and Pollution Control Act, 1994 (EMPCA) including to promote the development of natural and physical resources and facilitate economic development in a manner that maintains genetic diversity."
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42 He said the following at [12]:
"I must exercise my power to vary the Permit in such a manner as to further the objectives in Schedule 1 of EMPCA, including to facilitate sustainable development of natural and physical resources while remedying or mitigating any adverse effects of activities on the environment."
43 In relation to roadkill, he said the following, at [7]-[9]:
"7 I have considered expert advice, and I am satisfied that there are alternative effective controls (ie alternative to daylight vehicle movements only) that can be applied to Riley Mine vehicle movements outside of daylight hours to mitigate the risk of roadkill.
8 These alternative effective controls include restrictions on speed limits on all vehicle, associated with the Activity; driver education in roadkill minimisation; virtual fencing installed at roadkill hotspots; signage at roadkill hotspots; monitoring of speed and location data of all transport trucks; corrective actions for drivers that exceed speed restrictions in speed monitored vehicles; removal of roadkill from the Pieman Road and reduction of roadside standing water on parts of the vehicle route to discourage animals from scavenging and lingering on roadways; and expanded monitoring and reporting of roadkill events.
9 I am satisfied that these controls can be imposed on the Permit to reduce roadkill to an extent sufficient to maintain genetic diversity of animal populations that may be impacted by night-time transport, including Tasmanian Devil populations in the vicinity of the Pieman Road."
44 The Director had been provided with information to the following effect by a departmental officer in April 2020. There had been an ongoing decline of the Tasmanian devil population since 2013, primarily due to the continuing spread of Devil Facial Tumour Disease. The density of the devil population had continued to decline State-wide as that disease moved across the landscape. Monitoring and studies showed that, following the initial arrival of the disease into an area, the density of the incumbent devil population declined significantly but ultimately persisted at a low level. Devil densities around the Lyell Highway were low. The status of the disease in the area around the mine site was unknown. No surveys had been undertaken along the haulage route. Trapping by an organisation to the north and south of the mine area suggested that the disease was present and likely to have arrived between 2010 and 2014.
45 Written submissions were made to the Director on behalf of the applicant in April 2020, to the
following effect:
•
A study relied upon by Venture had led to a conclusion that a car travelling at 54 Km/h on a straight road at night using high beams could safely stop in time to avoid a Tasmanian devil, but it did not follow that a loaded ore truck travelling at 60 Km/h on the winding Pieman Road would be able to do so.
•
Studies cited by Venture to establish the effectiveness of virtual fences were of doubtful reliability. They had been criticised and their results had been unable to be replicated.
•
A report relied upon by Venture claimed that virtual fences would reduce roadkill by about half, even though the proposal to install virtual fencing applied only to about 12% of the haulage route.
•
It was possible that the winding nature of the Pieman Road would make virtual fencing ineffective.
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46 The Director's statement of reasons did not refer to the ongoing decline in the Tasmanian devil population, the consequences of Devil Facial Tumour Disease, the questions as to the efficacy of proposed roadkill mitigation measures, or the level of roadkill that might be considered acceptable. The applicant contends that the absence of references in the Director's statement of reasons to particular matters concerning roadkill should lead to an inference that he did not consider those matters.
47 If "review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial or clearly articulated argument … that may give rise to jurisdictional error": Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, 96 ALJR 497 per Kiefel CJ, Keane, Gordon and Steward JJ at [27]. The applicant contends that the Director fell into jurisdictional error by ignoring or overlooking relevant facts and arguments in relation to the precautionary principle and the Tasmanian devil.
48 However the new permit conditions relating to roadkill, which I have set out in full at [12] above, make it clear that the Director did address the issues relating to roadkill. Whilst reliance was placed on virtual fencing, which was to be installed pursuant to cl 4.1.5, the monitoring required by cl 4.10 could be expected to facilitate the assessment of the effectiveness of virtual fencing and, for that matter, the 60 Km/h speed limit.
49 There are no doubt differences of opinion as to value judgments made by the Director in rewriting the permit conditions. Many might consider that he did not strike the appropriate balance between economic objectives and the need to protect vulnerable native animals, particularly Tasmanian devils. It is not the role of this Court to undertake a merits review of the Director's value judgments as to such matters. The role of the Court is limited to determining whether his decision was within the law.
50 When the Resource Management and Planning Appeal Tribunal imposed the condition prohibiting the transportation of ore at night, it adopted a precautionary approach in relation to ecosystem sustainability and integrity in accordance with s 8 of the EMPC Act and cl 3(h) of Schedule 1 to that Act. Many might consider it inappropriate that a public servant should have the power to make an amendment that, to a degree, reversed a decision made by a statutory tribunal independent of government in relation to such an issue, but the Director had that power. The statutory objectives are not binding rules of law that a decision-maker is obliged to obey. I accept that, as a general rule, any failure to further any single objective does not invalidate the relevant exercise of power. There will certainly be occasions in which some objectives pull in different directions. It was open to the Director to make his own decision as to the balancing of conflicting objectives.
51 The reasons of an administrative decision-maker should be read as a whole, considered fairly, and not combed through with a "fine appellate tooth-comb": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Kirby J at 291. Bearing those principles in mind, I am not satisfied that the Director erred in law in the respects asserted in relation to the statutory objectives. Ground 2 must fail.
Fundamental change (Ground 3)
52 As I have said, the power exercised by the Director was the power under s 44(1)(d) of the EMPC Act to "vary the conditions or restrictions of a permit". The meaning of those words is governed by s 44(10) of that Act, which reads as follows:
"(10) In this section –
vary the conditions or restrictions of a permit includes change existing conditions or restrictions and add or remove conditions or restrictions, provided that the
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fundamental use or development authorised by the permit or major project permit is
not changed."
53 The applicant contends that the effect of the Director's decision was to change the "fundamental use or development authorised by the permit", contrary to the prohibition in s 44(10).
54 Counsel for the applicant relied on the decision of Estcourt J in Tarkine National Coalition Inc v Shaap [2014] TASSC 66, 23 Tas R 339. In that case the then Director of the EPA had purportedly varied the conditions of a permit for an open cut mine and processing facilities by allowing potential acid forming waste material to be stored above ground when the original permit conditions had provided for storage in a pit. However the change was based on a notification from the mine operator that the amount of potentially acid forming waste material was to be increased from 37,000 tonnes to 620,000 tonnes. Estcourt J held that the change from what had originally been proposed and permitted constituted a fundamental change to the development within the meaning of s 44(10).
55 In my view that case must be distinguished. Whether all trucks from the Riley Creek Mine travel by night or not, it will still be an open cut hematite mine. Unlike the decision in Tarkine v Shaap, the variation in the permit conditions in this case will not change the nature of the proponent's mining operation. Changes to the permit conditions relating to roadkill do not have an impact on the fundamental use or development described in the amended permit issued following the tribunal's decision. Ground 3 must therefore fail.
Conclusion
56 For these reasons the application is dismissed.
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