Ground 2: Uncertainty
130 Ground of appeal: The appellant's second ground of appeal is that the primary judge erred in law in holding that the result of the exercise of the Minister's power, the approval granted on 10 October 2011, was sufficiently certain having regard to the statutory context of the EPBC Act, and therefore that the Decision was not uncertain within the meaning of s 5(2)(h) of the ADJR Act or otherwise unauthorised by or in excess of the jurisdiction conferred by the EPBC Act (under s 5(1)(c) and (d) of the ADJR Act or under the common law), in that:
(1) the question posed in ground 1 of the application in the Court below and identified at [34] and [35] of the Reasons was whether the totality of the conditions attached to the Decision rendered the Decision uncertain in the relevant sense or otherwise beyond power; and
(2) this is the effect of the Decision, read with the totality of conditions as properly construed, insofar as it leaves so much of the design of the proposal (including the assessment and mitigation of environmental impacts) to be defined by proposed plans and studies, yet to be prepared or undertaken.
131 Primary judge's decision: The primary judge dismissed the appellant's application on the uncertainty ground, first noting the decisions in Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts (2009) 165 LGERA 203 (Tracey J) (Lawyers for Forests) and Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts (2009) 178 FCR 385 (Sundberg, Dowsett and Jacobson JJ) (Lawyers for Forests FC), where the proponent had obtained an approval subject to conditions to build and operate a pulp mill at Bell Bay in Tasmania. When operating, the mill would discharge effluent from the production process into Bass Strait.
132 The primary judge noted that the Minister's approval in that case was subject to 48 conditions, many of them referring to an environmental impact management plan that the applicant was required to develop in order to manage, monitor and respond to environmental impacts occasioned by the operation of the pulp mill. One condition required the applicant to sample the effluent discharged from the operation of the mill to determine if it fell within parameters set out in a table in the condition. The mill was not to operate if the monthly average effluent exceeded the maximum amounts set out in the table. The limits in the table could be revised if the revision was agreed to by a group called the Independent Expert Group and approved by the Minister as a result of further studies. Other conditions required the applicant to obtain samples, conduct chemical analysis, conduct laboratory studies, surveys and the like. The applicant was also required to carry out additional modelling in relation to the fate of the effluent as part of the environmental impact management plan prior to the commencement of the commissioning of the mill.
133 His Honour noted that, at first instance, Tracey J considered the challenged conditions were of a kind comprehended by s 134(3)(f) of the EPBC Act or contemplated by that subsection and that on appeal the Full Court rejected the submission that the Minister had, in effect, purported to create more than one approval. His Honour noted that the Full Court had rejected a submission that the impugned conditions were imposed so as to enable the Minister to assess the environmental impact of the proposed action or for the purpose of predicting that impact; and that it had stated that even if certain conditions could not be regarded as actually managing impacts, they were part of a plan for managing residual risks which had been identified.
134 His Honour then said, at [58], that it could not be doubted that the power to impose conditions under the EPBC Act is a "very wide one". His Honour noted the Minister may attach a condition to an approval if he or she is satisfied that it is "necessary or convenient" to do so within subss 134(1) and (2). He considered the breadth of the power could be seen from the terms of subs 134(3), and that para (e) authorised a condition for the preparation, approval and implementation of a plan for managing the impacts of the approved action. His Honour noted that the concept of management "is a very wide one and includes matters such as monitoring and testing, reporting, preventative measures and remedial action". His Honour considered that one thing was clear and that was that the power is broad enough to encompass significant additions or variations to the approved action. He noted that para (f) of s 134(3) authorises conditions requiring specified environmental monitoring or testing to be carried out, a power which recognised that there are always risks to the environment, particularly with major developments, and that conditions or circumstances change and the operation of an approved action needs to recognise the risks and changing conditions and circumstances and adapt to them. His Honour noted that para (g) of s 134(3) authorised conditions which require compliance with a specified industry standard or code of practice. His Honour finally noted that the list of matters about which conditions may be made under s 134(3) is not exhaustive of the kinds of conditions which may be attached to an approval.
135 As to the requirements of the certainty ground in s 5(2)(h) of the ADJR Act, his Honour said, at [59], that they must be formulated having regard to the particular statutory context to which it is to be applied. His Honour considered that, in the context of s 134, there is a "degree of latitude" in terms of the certainty ground. He considered, largely for reasons advanced by the respondents, that the conditions were sufficiently certain. Put another way, his Honour said the conditions made it "reasonably clear to the second respondent what it is required to do".
136 In relation to the appellant's submission that relied on s 5(1)(c) and s 5(1)(d) of the ADJR Act and the general law, his Honour considered, at [60], that whether the certainty ground might also be invoked on the basis that the exercise of the power in respect of which the result must be certain is not only the power to impose conditions, but also the power to approve, was a matter he need not consider. That was because the appellant's submission failed whichever ground was relied upon. In that regard, his Honour gave close consideration to two conditions, conditions 32 and 71. As to condition 32, his Honour said that, on the face of it, it left a major matter - "mine closure" - to be determined. He rejected the appellant's submission, however, that BHPB was left to formulate the assessment criteria. He said the Minister had the power to withhold approval to the mine closure plan. The reference to the assessment criteria being "clear, unambiguous and specific" was to assist the Minister to understand the metes and bounds of the mine closure plan. His Honour stated, at [64], that he was not satisfied that the imposition of condition 32 meant that there had been a failure to exercise the power in s 130 and s 133 of the EPBC Act. He considered the approach to conditions adopted in the Lawyers for Forests decisions supported that conclusion. His Honour added that there was another important matter which supported that conclusion, which was that this was not a case where a major topic was not addressed before approval was granted. Rather, mine closure had been considered before the approval was granted.
137 As to condition 71 concerning infrastructure alignment, his Honour noted it must be read with condition 70. He said that it was not argued that condition 71 was invalid. Rather, the argument was that condition 71 establishes that the Minister did not exercise the power he was authorised to exercise by the provisions of Pt 9 of the EPBC Act. His Honour considered, at [65], that the answer to that submission was that by condition 70 it was clear that the rail line, water pipe line and electricity transmission lines must be constructed on the alignments shown in figures in the draft EIS, unless otherwise approved by the Minister. The possibility of a gas pipeline was referred to in BHPB's referral form and three possible options for the location of a gas pipeline were shown in the draft EIS. His Honour said the reference to the gas pipeline may well fall within the concept of "alternative proposals" within s 72(3), s 133(1A) and s 134(3)(h) of the EPBC Act but, in any event, the reference to a gas pipeline in condition 71 would not be sufficient "to bring down the approval".
138 Appellant's contentions: The appellant seeks to advance two broad propositions on this ground of appeal, as he did before the primary judge, based on the extent to which conditions attached to the approval by the Minister left aspects of the proposed action to be later defined, assessed or its impacts mitigated, and contends that:
(1) where the content and effect of conditions depend on later determinations, their effect cannot be known until those processes occur. The result is that the decision involves an exercise of power which is uncertain, either in the general law sense or in the sense identified in s 5(2)(h) of the ADJR Act;
(2) where conditions envisage significant aspects of the proposed action being designed, determined or assessed at a later stage, the result is that an approval of the kind envisaged by s 133 of the EPBC Act has not been given. Rather, the Minister has purported to give a provisional or preliminary approval to a proposed action whose exact content is not yet clear. This is a constructive failure to exercise jurisdiction.
139 The appellant contends that if either proposition is correct, the consequence is that the Minister's decision to approve the proposed action is bad and should be set aside. Alternatively, the power in s 134, while undoubtedly broad, does not extend to attaching a set of conditions which undermine the Decision in the way complained of and, for the reasons given in Lansen at [28], the approval decision would be liable to be set aside.
140 As to the first proposition, the appellant says that the primary judge held that the conditions of the approval were sufficiently certain so as not to found relief under the uncertainty ground in s 5(2)(h) of the ADJR Act, and that his Honour also rejected the second proposition but in terms which suggests that it was treated as a variation on the uncertainty theme rather than as going to the nature of the approval purportedly granted.
141 The appellant contends that the primary judge's approval decision is largely based on the breadth of the power to impose conditions and the Minister's retention of control of subsequent approvals under the conditions and there is throughout the judgment a focus on specific conditions and how they are to be construed. While the appellant accepts that the primary judge recognised that the appellant's main argument related to the effect of the totality of the conditions, he submits that little consideration was given to the collective effect of the approval and its conditions.
142 The appellant contends that when one considers the approval and a number of relevant conditions to which it is subject collectively, the result of the exercise of the approval power is uncertain and the Decision is ultra vires the EPBC Act, in that it is made in error of jurisdiction owing to a level of uncertainty and is not authorised on the proper construction of the EPBC Act.
143 The appellant contends that the focus of the inquiry, whether under the ADJR Act or under the general law, is on the result of the exercise of power sought to be impugned, here the approval, and not on the reasons or process leading to it.
144 As to his first proposition, the appellant draws attention to what he says are proposed plans or studies relating to particular matters in the following conditions: 4-12 (environment protection management program); 14-15 (radiation); 17 (site contamination); 18 and 20-21 (fauna); 23-25 (groundwater); 28 (extraction of water from the GAB); 30-31 (best practicable technology); 32 (mine closure); 42 (desalination plant); 45 (Minister can agree to higher salinity level); 47 and 50 (giant cuttlefish); 55-57 (operational dilution factor); 58 (review of program); 62 (management plan for barge landing facility); 66 (transport to Darwin and export); 71-72 (infrastructure plan); 77 and 79 (future consultation with indigenous representatives and measures to protect indigenous cultural heritage); 82 (environmental offsets plan); and 83-91 (general provisions concerning plans). The appellant also draws attention to the proposed Greenhouse Gas and Energy Management Plan in this context. The appellant complains that these constitute an extensive purported use of s 134(1) and s 134(3)(e) and (f) of the EPBC Act to define, assess and mitigate impacts of the proposal later.
145 The appellant says these conditions provide numerous examples of the approval leaving the definition of the proposal, its assessment or mitigation of its impacts to be dealt with later. He contends that some conditions requiring plans to be prepared in the future purport to have the plan "pull itself up by its own bootstraps", in that the plan is to specify the operations which are to be covered by the plan - referring to conditions 5(a) and 43(a) which it is said apply respectively to the environmental protection management plan and the desalination plant environmental management plan.
146 The appellant says there is a series of targets, yet to be set, which targets are to be the subject of as yet unascertained requirements in plans and those targets are required to be set according to unclear criteria (for example, targets for spills in condition 17, targets to avoid significant impacts on threatened species in condition 20, targets to limit impacts from the desalination plant in condition 43, and the size of any exclusion zone for the barge landing facility in condition 62). The appellant says the primary judge did not address these "vague" target examples.
147 The appellant says the limits or standards by which the plans or monitoring are to be judged are in many cases vague and unspecific, depending on diffuse obligations (such as a requirement to "further update, enhance and validate", "improved understanding" and "confirm the conceptual understanding", in condition 23) and objectives (for example, to decrease attractiveness of the tailings storage facilities to Listed Species of birds, in condition 21). The appellant says the approval requires the establishment of compliance criteria to determine whether standards such as "no significant adverse impact" are met (as in condition 24 in respect of the standard in condition 22; and condition 28 in respect of the standard in condition 27), but the bases for determining such criteria in turn comprise criteria such as "no significant adverse impact" (as in condition 22) or leave the compliance criteria to be determined (as in condition 28(a)). The appellant says there are also a number of objectives to achieve "best practicable technology" without any real guidance as to what this term might constitute at any particular time; and that some target criteria will require further investigation or testing (as for example, in condition 55).
148 As to his second proposition, the appellant places particular reliance on conditions 32, 66 and 71.
149 The appellant submits these conditions establish that the purported approval does not have the quality required by s 131 and s 133 of the EPBC Act. The appellant says his Honour considered condition 71, but not condition 66, the latter being put in issue by the appellant for the same reason as condition 71.
150 The appellant says his Honour considered that condition 71 did not have the effect contended for by the appellant because condition 70 required relevant infrastructure (except any gas pipeline) to be constructed in approved corridors unless otherwise approved under condition 71. The appellant contends that the fact that there was a "default" pathway for the infrastructure (other than the gas pipeline) in condition 70 does not overcome the "real problem" in condition 71, namely, that the Minister was purporting to give BHPB a right to propose, and to give himself the power to approve as yet undescribed alternative proposals pursuant to a condition and not pursuant to the mechanisms in the EPBC Act for consideration of proposed actions. Consultation with indigenous groups in connection with infrastructure corridors that are to be part of the action was also something which, by the condition, was to be undertaken later.
151 The appellant makes the same complaint about condition 66 that deals with construction of the Port of Darwin handling facility, submitting that by the condition the Minister has purported to give himself the power to approve an as yet undescribed proposal.
152 The appellant, in a similar vein, draws attention to condition 32(a) that deals with mine closure. The appellant says the relevant requirements are not specified in the approval but are left to be the subject of a further plan. BHPB is left to formulate the criteria; and a requirement for Ministerial approval of the basis on which the mine is to be closed, after the event, does not overcome the fact that the approval leaves the major matter of mine closure to be determined later without providing any clear criteria that such a closure is to meet.
153 The appellant submits that by conditions such as 32, 66 and 71, it may be seen that the Minister has purported to give himself the power to decide later what ought be done to address substantial impacts on the environment which should have been considered at the time of making the Decision and granting the approval.
154 Consideration: Under the general law, the power of a public official to do a particular act, such as grant an approval or impose conditions on an approval, is ordinarily dictated by a statute under which the public official acts. If the validity of an approval or conditions attached to it is challenged the question then is whether the approval granted or the conditions challenged are authorised by the statute.
155 In Lloyd v Robinson (1962) 107 CLR 142 the power of the planning agency under s 20(1)(a) of the Town Planning and Development Act 1928 (WA) to "give its approval … subject to conditions which shall be carried out before the approval becomes effective" to the subdivision of part of a lot was held to be sufficient to support the validity of a condition requiring the giving up of an area of an adjacent portion of the lot land for purposes relevant to the subdivision, in circumstances where the statute at its commencement took away the proprietary right to subdivide without approval and gave no compensation for the loss.
156 The Court (Kitto, Menzies and Owen JJ) stated, at 154:
If approval is obtained for the subdivision of one area of land by complying with a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first, it is a misuse of terms to say that there has been a confiscation of the second. For the giving up of the second a quid pro quo is received, namely the restored right to subdivide the first. It may be that the quid pro quo is inadequate, and that the landowner, though under no legal compulsion to give up the second area of land if he chooses to forego the idea of subdividing the first, is nevertheless under some real compulsion, in a practical sense, to submit to the loss of it because of the importance to him of obtaining the approval. But there is no room for reading the [Town Planning and Development] Act down in some fashion by appealing to a principle of construction that has to do with confiscation.
The Court then immediately added:
If the Board has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists, the inescapable effect of the Act is that the landowner must decide for himself whether the right to subdivide will be bought too dearly at the price of complying with the conditions.
(Emphasis added.)
157 In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30, a majority of the Court upheld the approach taken in Lloyd v Robinson and supported the validity of a condition imposed pursuant to a similar conditional approval power to that considered in Lloyd v Robinson, to the effect that upon subdivision the developer cede a portion of a foreshore reserve to the Crown free of costs to and without payment of compensation by the Crown.
158 The majority (McHugh J, in a separate judgment, and Gummow and Hayne JJ, in a joint judgment) confirmed a number of principles concerning the imposition of conditions under such a conditional approval power. It was generally accepted that the planning agency's power to attach conditions to development consents under such a provision was limited to those conditions that are reasonably capable of being regarded as related to a legitimate planning purpose, and that purpose is to be ascertained from a consideration of the applicable legislation and town planning instruments to which the agency is subject, and not to be ascertained from some preconceived general notion of what constitutes planning: see McHugh J at [56]; Gummow and Hayne JJ at [93]. In this regard, the majority had regard not only to what was held in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490, but also to the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 618-619.
159 In Newbury, as McHugh J stated at [57], it was held that a condition attached to a grant of planning permission will not be valid unless:
1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of that constitutes planning.
2. The condition reasonably and fairly relates to the development permitted.
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.
160 These criteria for validity of a condition attached to an approval may be taken to inform, at a general law level, an analysis of the validity of conditions, sometimes called "ambulatory conditions", designed to govern the process by which an approved activity is implemented. Such conditions may be imposed to require such things as the monitoring of aspects of the approved activity or further assessment and approval of aspects of the approved activity.
161 However, the validity of ambulatory conditions may also raise questions as to whether the approval power has truly been exercised at all, either because the activity defined by the conditions or the application of the conditions is different from the activity for which approval was sought, or because a condition is ambiguous or uncertain.
162 In this regard, a decision such as Mison v Randwick Municipal Council (1991) 23 NSWLR 734 is instructive in relation to the power to impose ambulatory conditions under the general law. In Mison, the New South Wales Court of Appeal (Priestley, Clarke and Meagher JJA) considered the validity of a conditional consent to permit development of residential land granted under s 91(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) which required that the overall height of a dwelling house be "reduced to the satisfaction of the Council's Chief Town Planner". Section 91(1)(a) of the EPA Act provided that a development application shall be determined by "the granting of consent to that application, either unconditionally or subject to conditions". No provision of the EPA Act specified what conditions or types of conditions might be imposed under s 91(1)(a). The Court of Appeal considered that, generally speaking, having regard to the terms of a particular regulatory regime, the retention of some flexibility or the delegation of authority through conditions in relation to the implementation of a land or resource use proposal will not necessarily spell the invalidity of the approval granted (whether because it could be argued that the approval power had not been exercised at all or because of some ambiguity in the conditions).
163 Priestley JA, at 737, expressed the view that a purported consent will not be a consent to the application under s 91(1)(a):
(1) if a condition imposed has the effect of significantly altering the development in respect of which the application was made; or
(2) if the fulfilment of a condition imposed upon a consent would significantly alter the development in respect of which the application was made; or
(3) if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made.
164 His Honour acknowledged that the introduction of the word "significantly" into the test imports into the decision-making process of the consent authority a judgmental factor incapable of precise statement. By reference to this test, his Honour considered the impugned condition was invalid as there was no clear answer to the question of the extent to which the Council's planner might require reduction of the overall height of the house.
165 Clarke JA, in coming to the same conclusion as to the invalidity of the impugned condition, considered, at 739-740, that where a consent has been granted in terms which leave open for later decision a particular aspect of the planned development, the question may arise whether the consent is final. But, his Honour added, this will not necessarily be the case. Where the question does arise there may be cases in which the answer is clear. In other instances "questions of degree" may be involved. His Honour considered it neither possible nor desirable to attempt to lay down a criterion to be applied in every case in determining whether a consent is final. His Honour added, however, that where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect, it is difficult to see how that consent could be regarded as final.
166 His Honour considered that in light of the importance of the height factor in the immediate case before the Court, the relative lack of restriction upon the planner's discretion led to the view that the Council had not finally disposed of the application.
167 Meagher JA agreed with both Priestley JA and Clarke JA. His Honour, at 741, applied both a "significantly different" test and a "was the consent final or certain?" test and noted that there were ambiguities that arose from the use of the word "height" in the condition imposed. He considered it was not possible to say what "overall height" meant in those circumstances. His Honour questioned, how, unless such ambiguities were resolved, one could consider that the resulting structure is not "significantly different" from that applied for, and how could one reach the result that the condition is certain?
168 In Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 the New South Wales Court of Appeal (Spigelman CJ, Powell and Stein JJA) again considered the s 91 EPA Act conditional consent power. All three members of the Court applied Mison. Spigelman CJ (who otherwise generally agreed with the reasons of Stein JA and with whom Powell JA agreed in part) noted, at [12], that the common law has not developed a general principle that the exercise of a statutory power must be "certain", referring to what was said in King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194-195 and other authorities. The Chief Justice emphasised that the issue is one of construction of the particular statute under consideration and the application of the statute to the circumstances of the particular case. The Chief Justice further noted that, as in Mison, a purported exercise of the s 91 of the EPA Act power would not be valid unless the decision constituted a "consent", and that a purported exercise of the power would not be valid unless it constituted a "consent to that application". Consequently, the power to impose conditions cannot be exercised in such a manner as to have the consequence that the exercise of the power fails to answer the description of a "consent" or a "consent to that application". The Chief Justice noted that the process of statutory construction has sometimes been expressed in the terms of a "principle of finality" but, at [15], counselled that such terminology must be approached with care, as the issue always turns on the construction of the particular statute.
169 The Chief Justice, at [17], by reference to Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at [117], accepted that Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of a development is prohibited. He accepted, at [18], that such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of a proposal with absolute precision.
170 Stein JA, at [206]-[211], also acknowledged the Mison principles. At [207], his Honour said that, in essence, the principle is that where a condition has the effect of significantly altering the development or to leave open the possibility that the development carried out in accordance with the condition will be significantly different from that applied for, then it is not a consent to the development. At [210], his Honour considered one underlying rationale for the principle was the diminishing of participation rights of objectors provided for by the EPA Act.
171 On the face of it, the approaches suggested by Priestley JA and Clarke JA in Mison disclose subtle but important differences. Under the tests suggested by Priestley JA, invalidity may follow if there is a "possibility" that the development carried out will be significantly different from that for which consent was sought. By contrast, Clarke JA emphasised the question of finality. In Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277, Basten JA (with whom Handley JA and Hunt AJA agreed) noted the different explanations provided by Priestley JA and Clarke JA for the finding that the relevant condition was invalid and stated, at [28], that although "different language" was used in relation to the separate categories of invalidity:
it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On the other hand, a consent may fail, within the first category (Priestley JA), where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.
172 Basten JA, at [52], further noted that the Mison test was not expressed in terms of "fundamental difference", but of a consent having "the effect of significantly altering the development", and that, as was expressly recognised by Priestley JA at 737, was a different and lesser test than that of compliance with a condition which would make the application an "entirely different development". Basten JA noted that in Winn, Powell JA spoke of "fundamentally altering the nature of the development" but, because the discussion followed immediately upon lengthy extracts from the judgments in Mison, without any suggestion that a different test was being applied to that espoused in Mison, he did not understand his Honour to have adopted the "harder to establish test" eschewed by Priestley JA in that case. Basten JA further noted that, on the other hand, the discussion in the judgment of Stein JA in Winn, at [209]-[216], "adopts a variety of terminology, and the precise implications of the variations may need to be explored in another case".
173 Basten JA further noted, at [55], that a challenge to a condition may be based on the second category identified in Mison. Thus, a condition may be uncertain but final, in the sense that it does not foreshadow a further judgment, either by the planning agency or a delegate or a third party. However, Basten JA considered that mere uncertainty may not give rise to invalidity and whether or not it does depends upon the question whether the condition complies with the statutory limits imposed upon the power of the agency. His Honour considered mere flexibility or imprecision may not necessarily contravene any statutory limit on the particular power being exercised.
174 In Ulan Coal Mines Limited v Minister for Planning (2008) 160 LGERA 20, Preston J, Chief Judge of the New South Wales Land and Environment Court applied Winn in the course of considering the validity of condition 29 to a coal mining project approval granted under s 75J of the EPA Act. By subs (4) a project could be approved "with such modifications of the project or on such conditions as the Minister may determine". By subs (5) the conditions of approval for the carrying out of a project "may require the proponent to comply with any obligations in a statement of commitments made by the proponent…". Condition 29 provided:
The Proponent must ensure that it has sufficient water for all stages of the project, and if necessary, adjust the scale of mining operations to match its water supply.
175 The applicant proponent, relying on Mison, unsuccessfully challenged the validity of this condition. The Chief Judge, at [53]-[63], first rejected a contention that condition 29 was neither logical nor responsive to the issue of water supply availability once it was recognised that the condition did not require the mine to operate at the maximum scale permitted and that the condition did not mandate that the only means by which the mine can balance water supply and demand is to adjust the scale of operations.
176 The Chief Judge rejected a second contention that there was a lack of certainty as to what might be required to adjust the scale of mining operations to match its water supply and that the words "scale of mining operations" were either ambiguous or uncertain. In that regard his Honour noted, at [66], that mere ambiguity or uncertainty of the meaning of words does not necessarily lead to invalidity if courts endeavour to avoid uncertainty by adopting a construction which gives statutory instruments and decisions practical effect. He considered that on their proper construction the words had a clear meaning.
177 In a related way the Chief Judge rejected an argument that condition 29 was uncertain because it did not specify the precise way in which the mine must adjust its mining operations, that is to say, specify the parameters governing any adjustment. His Honour noted, at [74], that the power to grant approval on conditions in s 75J neither expressly nor impliedly required, in order for a condition to be valid, that a condition set the parameters for adjustment of a project to achieve an outcome or an objective specified in the conditions. As to a further related argument that without such specification of parameters there would be a legally unacceptable uncertainty, his Honour considered that questions of degree are always involved in determining whether a condition is sufficiently uncertain as to be outside power. His Honour further noted, at [78], that retention of practical flexibility, leaving matters of detail for later determination and delegation of supervision of some stage or aspect of the development may all be desirable and be in accordance with the statutory scheme. The Chief Judge considered, at [79], that the condition fitted within the statutory scheme of the EPA Act Pt 3A there under consideration.
178 As to a third contention, that the project was significantly different from that for which approval had been sought, the Chief Judge considered there were two responses, one factual and the other legal. As to the legal response, the Chief Judge, at [88], considered that the argument that condition 29 may result in a significantly different project was that this would only be legally relevant if to do so would take condition 29 outside power. At [90], his Honour commented that if condition 29 could result in the proponent carrying out different mining operations under the project at a lesser scale, such as by not proceeding with one mine (a construction he had rejected), this could still be said to be a modification of the project and therefore it would be within power.
179 Decisions such as Mison, Winn, Kindimindi and Ulan Coal Mines go to confirm the observation that, under the general law, the question whether a conditional approval or a condition attached to the approval of some activity is valid, is an exercise in statutory construction. They also confirm that, as a general principle, the approval or a condition will not necessarily be considered invalid because a condition retains in the decision-maker some ongoing flexibility in relation to the implementation of an approved activity or because it delegates some authority in relation to the implementation of the decision to some other person or agency.
180 The appellant's challenge to the validity of the Decision here relies to an extent on these general law considerations, but also on a particular uncertainty argument that is derived from the ADJR Act.
181 In relation to the first proposition he advances, the appellant relies on s 5(1)(e) of the ADJR Act in combination with s 5(2)(h). Subsection (1)(e) enables a person who is aggrieved by a decision to which the ADJR Act applies (which includes the approval here), to apply for an order of review in respect of the decision on the ground that "the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made". Subsection (2)(h) provides that the reference in subs (1)(e) to an improper exercise of a power shall be construed as including a reference to "an exercise of a power in such a way that the result of the exercise of the power is uncertain".
182 In relation to the second proposition he advances, the appellant relies on s 5(1)(c) and s 5(1)(d) of the ADJR Act. Subsection (1)(c) enables a person who is aggrieved by a decision to which the ADJR Act applies to apply for an order of review on the ground that "the person who purported to make the decision did not have jurisdiction to make the decision" and (1)(d) enables the application for review to be made on the ground that "the decision was not authorized by the enactment in pursuance of which it was purported to be made". In advancing the second proposition the appellant also relies on s 39B of the Judiciary Act and the general law.
183 It is to be understood that each of the grounds for judicial review specified in s 5 of the ADJR Act constitutes a separate statutory ground of review and, while perhaps reflective of the general law grounds by which judicial review of administrative action could be sought at the time of its enactment in 1977, or now, is not confined or prescribed by the general law as it was then, or is now. Thus, as Finn J noted in Randwick City Council v Minister for the Environment (1998) 54 ALD 682 at 730 (in a passage noted by the primary judge at [37] of the Reasons), where provisions such as s 5(1)(c), (d) or (2)(h) provide the ground of review, the Court is not concerned with the common law but with a matter of statutory construction. For example, so far as the first proposition is concerned that relies on s 5(2)(h), the question of construction is whether there has been "an exercise of power in such a way that the result of the exercise of the power is uncertain".
184 In the present case, it is common ground that "the result of the exercise of the power" in question for the purpose of s 5(2)(h) and the "decision" referred to in s 5(1)(c) and (1)(d), is the approval granted with conditions. The appellant's first proposition poses the question whether the conditions attached to the approval make it "uncertain". The appellant's second proposition involves the contention that, under the ADJR Act s 5(1)(c) and (d) and the general law the same conditions that are impugned and which are said to make the approval uncertain under s 5(2)(h), as well as others, result in the decision being one the Minister did not have jurisdiction to make or which was not authorised by s 133 and s 134 of the EPBC Act.
185 The starting point, therefore, whether considering the question of uncertainty under the ADJR Act grounds or validity under the ADJR Act and the general law grounds, is the EPBC Act that authorises the Minister to grant an approval under s 133 and to impose conditions on the approval under s 134. Section 133 relevantly provided:
Approval
(1) After receiving the assessment documentation relating to a controlled action, or the report of a commission that has conducted an inquiry relating to a controlled action, the Minister may approve for the purposes of a controlling provision the taking of the action by a person.
(1A) If the referral of the proposal to take the action included alternative proposals relating to any of the matters referred to in subsection 72(3), the Minister may approve, for the purposes of subsection (1), one or more of the alternative proposals in relation to the taking of the action.
186 Section 134 relevantly provided:
(1) The Minister may attach a condition to the approval of the action if he or she is satisfied that the condition is necessary or convenient for:
(a) protecting a matter protected by a provision of Part 3 for which the approval has effect (whether or not the protection is protection from the action); or
(b) repairing or mitigating damage to a matter protected by a provision of Part 3 for which the approval has effect (whether or not the damage has been, will be or is likely to be caused by the action).
…
(3) The conditions that may be attached to an approval include:
(aa) conditions requiring specified activities to be undertaken for:
(i) protecting a matter protected by a provision of Part 3 for which the approval has effect (whether or not the protection is protection from the action); or
(ii) repairing or mitigating damage to a matter protected by a provision of Part 3 for which the approval has effect (whether or not the damage may or will be, or has been, caused by the action); and
…
(e) conditions requiring the preparation, submission for approval by the Minister, and implementation of a plan for managing the impacts of the approved action on a matter protected by a provision of Part 3 for which the approval has effect such as a plan for conserving habitat of a species or ecological community; and
(f) conditions requiring specified environmental monitoring or testing to be carried out; and
(g) conditions requiring compliance with a specified industry standard or code of practice; and
(h) conditions relating to any alternative proposals in relation to the taking of the action covered by the approval (as permitted by subsection 133(1A)).
This subsection does not limit the kinds of conditions that may be attached to an approval.
187 What is immediately obvious about s 134, is that care has been taken not to empower the Minister to impose conditions generally (as did the approval powers the subject of consideration in Mison) but to structure the circumstances in which the Minister may attach a condition to an approval under s 133 and to identify the nature or types of conditions that may be attached. The effect of s 134(1) is two-fold. First, no condition, including those that may be imposed under subs (3), can be attached unless the Minister is satisfied that the condition is "necessary or convenient" for protecting a matter or repairing or mitigating damage to a matter protected as described by subs (1)(a) or (b). Secondly, subs (1) is also a source of the power of the Minister to attach a condition where the Minister is satisfied that that condition is necessary or convenient in terms of subs (1)(a) or (b). This is clear from the statement in subs (3), that subs (3) does not limit the kinds of conditions that may be attached to an approval. This non-limitation provision necessarily means that by subs (1) the Minister is authorised to attach a condition which meets the description provided in subs (1)(a) or (b). In a case such as the present, therefore, an impugned condition may possibly be authorised by s 134(1)(a) or (b) alone, or in combination with one of the subparagraphs of subs (3).
188 It may be seen that by s 134(3)(e) conditions of the type that involve some retention of flexibility in relation to continuing decision-making in relation to the implementation of an activity, are expressly authorised. But, as noted, any condition relying on subs (3)(e) must meet the character of conditions requiring the preparation, submission for approval by the Minister and implementation of a plan for managing the impacts of the approved action on a matter protected by a provision of Pt 3 for which the approval has effect such as a plan for conserving habitat of a species or ecological community. However, the final phrase in subs (3)(e), "such as a plan for conserving habitat of a species or ecological community", should be understood as providing merely an example of and not limiting the type of conditions that may be imposed under subs (3)(e), if they otherwise meet the primary requirements of such conditions. Attention should also be directed to subs (3)(f) which enables conditions requiring specified environmental monitoring or testing to be carried out, and to subs 3(g) which enables conditions requiring compliance with a specified industry standard or code of practice.
189 In Lawyers for Forests, Tracey J, at [22], noted the applicant (LFF) asserted that the Minister was seeking, by the imposition of conditions, to obtain knowledge of the impact of the discharge of effluent and that, without this knowledge, it was not possible for him to impose the conditions in the first place. His Honour considered there were a number of difficulties with that assertion. First, that LFF was unable to adduce any direct evidence that the Minister considered that he laboured under the disability attributed to him. Second, that it failed to take into account the range of information which was before the Minister when he made the decision. Third, that LFF had failed to define with precision the level of knowledge which it said the Minister must have in order to come to a degree of certainty which it said he must have before he can impose conditions under s 134(1). His Honour noted that LFF's argument did, however, assume that the results of the studies and the monitoring which the conditions require be undertaken form an essential part of that body of knowledge.
190 At [26], Tracey J found there was nothing in the material before the Minister which would have enabled him to have been satisfied to a level of scientific certainty, that the proposed marine outfall would have a particular impact on the Commonwealth marine environment. There was, however, sufficient information to enable him to conclude, as he did, that the likely impact of the discharge of effluent could be prevented or mitigated by imposing conditions which imposed limits, based on overseas experience, on the concentration and volume of toxic materials being discharged. That, in his Honour's view, provided a sufficient foundation to determine that it was necessary and/or convenient to impose conditions of the kind adopted by him.
191 Tracey J added, at [27], that the Minister could so act even though he was unable to determine with certainty what the environmental impact of the proposed discharge would be. His Honour noted the "precautionary principle", which is stated and defined in s 391 of the EPBC Act and which by s 391(3) must be regarded in the exercising of s 133. However, by s 391(1), the precautionary principle must be regarded only "to the extent [the Minister] can do so consistently with the other provisions of this Act".
192 The point about both the precautionary principle and the principle of ecologically sustainable development, both described above, is that in each case it is intended to authorise "measures" to prevent environmental degradation where there are "threats" of serious or irreversible environmental damage even if that decision-maker lacks full scientific certainty.
193 On appeal in Lawyers for Forests FC, the Full Court noted the Minister's findings and observations, noted the precautionary principle which the Minister is required to take into account in making a decision under s 133 to the extent he or she can do consistently with the other provisions of the Act, and found, at [47], that it was apparent from the Minister's reasons that the impugned conditions were not imposed so as to enable him to assess the environmental impact of the proposed action or for the purpose of predicting that impact. Although on the evidence no significant impacts were likely, the conditions were designed to deal with a residual risk from unexpected trends or events, and were imposed in accordance with the precautionary principle for the purpose of guarding against them by resort to monitoring and management. The Full Court, at [54], said it was also apparent from the Minister's reasons that the impugned conditions did not constitute a separate approval process. The approval was accompanied by the conditions attached to it. They were not subordinate to the approval.
194 The Full Court recorded its agreement, at [56], with what the primary judge said about the claim that the Minister lacked the required degree of certainty he was required to have as a precondition to the exercise of his powers under s 134, and with his conclusion that the Minister in fact had sufficient information to enable him to conclude that the likely impact of the discharge of effluent could be prevented or mitigated by imposing conditions which imposed limits, based on overseas experience, on the concentration and volume of toxic materials being discharged.
195 On this appeal both the appellant, in pressing his contention that the primary judge did not give adequate regard to the totality of the conditions imposed on the approval when considering the grounds of review, and the respondents, in contending that the impugned conditions must be construed by reference to a range of relevant conditions touching on the particular subject matter, emphasise the importance of the Court not approaching the questions of construction in a narrow, artificial or segmented way. To this end, it is appropriate to attach the conditions imposed on the approval as an appendix to these reasons. It will be noticed that the conditions are located in seven "schedules" dealing with particular aspects or components of the proposal and include three definition conditions.
196 While the appellant's main attack on the uncertainty grounds here is by reference to what he says was the failure of the primary judge to consider adequately the totality of the impugned conditions, which indicate an uncertain approval or that the approval so issued was beyond jurisdiction, it remains necessary to have regard to particular impugned conditions and their context in relation to other conditions in order to deal with the propositions put. To attempt to regard the totality of the impugned conditions in any other way would be impermissibly impressionistic and fail to regard what the conditions actually require or do in relation to the approved activity either taken alone or together with other conditions or the conditions as a whole.
197 It should also be said in relation to the appellant's totality contention, however, that the appellant does not seek to rely upon the number of conditions that he says leave a range of issues for approval by the Minister during the course of the implementation of the project in order to sustain the propositions put. Nor would one expect such an argument to be put. The question ultimately is one of construction, as to both whether particular conditions answer the description of conditions that may be imposed on an approval and/or make the approval uncertain; and/or whether the approval with the challenged conditions is beyond the Minister's jurisdiction under the EPBC Act or not authorised by the EPBC Act.
198 As noted above, the appellant draws attention to a range of conditions that are said to support the first proposition advanced on behalf of the appellant. The primary judge dealt with particular conditions that were the subject of argument before him, although it would appear that his Honour was not thereby intending to deal with every condition raised in argument. It is appropriate to take a broadly similar approach here. Consideration will in particular be given to those conditions to which his Honour appears primarily to have been directed, as well as to those pressed in submissions on behalf of the appellant on the appeal.
199 Conditions 4, 5 and 7 are the first grouping of conditions to be considered. They fall within Sch 1: Mining and processing. They require the preparation, subject to the Minister's approval, of an environmental protection management program in relation to mining and processing that has particular nominated specifications and which, when approved, must be implemented. The program is not at large, but must meet the specifications identified in condition 5. The specifications include "target criteria".
200 There is no relevant lack of certainty or ambiguity in condition 5(f). The expression "target criteria" is not vague. These criteria must reflect a "level of impact that is as low as reasonably achievable for radiation exposure to humans, and must be minimised to the lowest reasonable levels for Non-human Biota", as is stated in 5(f). The expression is defined to similar effect in condition 107.
201 It may also be noted in passing, at this point, that other expressions used in condition 5 (and also in a number of other conditions), namely "compliance criteria", "leading indicator criteria" and "non-human Biota" are also defined in condition 107.
202 It is for the Minister ultimately to approve what is appropriate by reference to various specifications in condition 5 and no doubt some degree of negotiation or exchange may be completed before approval is given by the Minister to the various criteria and other terms of the program.
203 To similar effect the primary judge, at [49], reasonably said of the expression "target criteria", that it was broad but not so broad as to be meaningless. His Honour noted the same could be said of the definition of "leading indicator criteria" in condition 5(e) (also relevant to condition 17). In his discussion at [49], his Honour also reasonably accepted the respondents' submissions that condition 20 (dealing with listed species of birds) must be read as a whole so that the definitions provided in the EPBC Act for words or expressions such as "impact" and "significant impact" supplied criteria by which compliance may be determined.
204 In general terms, the environmental protection management program envisaged and required by conditions 4, 5 and 7 fall within the statutory language of s 134(3)(e) of a "plan for managing the impacts of the approved action on a matter protected by a provision of Part 3 for which the approval has effect such as a plan for conserving habitat of a species or ecological community". The fact that there is an apparent lack of specificity about what must be done when the condition is imposed does not make the approval uncertain, especially in the circumstances where s 134(3)(e) authorises such a condition. The program will, when approved, manage the potential impacts identified.
205 It is also appropriate to note, as the respondents do and the primary judge accepted at [48], that the consequences of the environmental protection management program not being approved are clear. Condition 8 provides that the program must be submitted to and approved by the Minister before "substantial commencement". This term is defined by condition 107 to mean "the stripping of top soil from the open pit site and commencement of removal of overburden". The Minister thus exercises close control over the program formulation process.
206 Additionally, as the Minister submitted and the primary judge accepted at [47], by condition 10 the environmental protection management program must be reviewed every three years with a report provided to the Minister addressing certain matters. Any revision to the program must be approved by the Minister.
207 Further, by condition 30, BHPB must review the activities covered by Sch 1 every 10 years to confirm that the "best practicable technology" (another expression defined by condition 107) is being used to minimise environmental impacts and risks, and provide a report to the Minister.
208 Conditions 4, 5 and 7, particularly when read in context and with these other conditions, are of the kind contemplated by s 134 of the EPBC Act. They have to do with managing impacts of the approved activity. The approval with those conditions imposed is not uncertain.
209 Condition 16, also within Sch 1, deals with site contamination. Condition 16 requires that the approval holder ensure assessment and remediation of any contamination from spills or leaks, including from radioactive process materials, in accordance with an identified Measure and an identified Code of Practice.
210 In this context condition 17 requires that the program required under condition 4 include "leading indicator criteria" that specify, for each class of contaminants, investigation and response levels as defined in the Measure in the event that spills or leaks occur.
211 For the same reasons that conditions 5 and 7 do not make the approval uncertain, nor do conditions 16 and 17. The expression "leading indicator criteria" used by condition 17, as noted above, is defined and, as his Honour said at [49], is not meaningless. Condition 17, related as it is to condition 4, reasonably provides for the submission of a program, to be approved by the Minister, that deals with the management of an environmental contamination risk from spills or leaks. It is a condition that is essentially preventative in nature in respect of an identified risk and may reasonably be said to reflect an application of the precautionary principle.
212 Condition 20 deals with target criteria for impacts on listed species of birds. Condition 20 falls within a number of conditions in Sch 1 that deal with fauna. Conditions 18 and 19 respectively deal with a concern that evaporation ponds do not impact on listed species of birds and require that the program mandated by condition 4 demonstrates best practicable technology to that end. In that context, the requirement of condition 20 that the program specifies target criteria for impacts on listed species of birds cannot be considered objectionable. The expression "target criteria" is defined, as noted above. As to exactly what the target criteria will be will become clear in the approved program. Again, the purpose of the condition is to manage impacts in respect of listed vulnerable species of birds. The target criteria must be at a level to avoid "significant impacts" on those species. This requirement may raise questions of judgment and degree, but it does not thereby make the requirement objectionable. The condition reasonably is one that provides for managing identified potential impacts.
213 Condition 23, also within Sch 1, deals with groundwater monitoring. Condition 23 along with conditions 22 and 24-26 deal with groundwater. Each condition has a particular objective. For example, condition 22 is concerned to ensure no significant adverse impacts on groundwater dependent listed species or ecological communities, or on environmental values as described in the EIS or as revised under condition 23(b) of the Yarra Wurta Springs, or to compromise the environmental values of groundwater outside the special mining lease as a result of seepage from the tailings storage facility. Condition 23 requires the program under condition 4 to include a regional groundwater monitoring and managing program that provides for the approval holder to:
(a) update, enhance and validate a simulation model included in the supplementary EIS by reviewing the model at least every three years, together with other requirements;
(b) improve understanding of the hydrogeology and ecology of the Yarra Wurta Springs by undertaking a specified work program;
(c) confirm the conceptual understanding of the hydrogeology of the Torrens Hinge Zone by undertaking a specified work program; and
(d) confirm the conceptual understanding of the hydrogeology of the Stuart Shelf by undertaking a specified work program.
214 The management program required in each case is no doubt complex and extensive. In relation to a project such as that put forward by BHPB and the subject of the Decision, this may not be considered surprising. The Minister's statement of reasons for decision at [6.17] to [6.31] shows the Minister gave close consideration to the groundwater issue and this condition is designed to enable further detailed management of impacts to be put in place, with the approval of the Minister. Condition 23 would therefore appear to be supported by s 134(3)(e). Additionally, it would also appear to be supported by subs (3)(f), as it requires specified environmental monitoring or testing to be carried out. It would also appear to be supported by s 134(1)(a) in that it is designed to protect groundwater resources. It serves to manage nominated environmental risks arising from the approved activity.
215 Condition 61 concerns a barge landing facility. It falls under Sch 3: Barge landing facility and pre-assembly yard together with condition 62. Condition 61 would appear to be directly within the power to impose a condition created by s 134(1)(a), in that the condition is designed to ensure that the construction and operation of a barge landing facility, "as described in the EIS", must not have a "significant adverse impact" on cetaceans in the manner described. The proscription is clear. As to the meaning of "significant adverse impact" that is an expression that is capable of being given content, including under the EPBC Act. Condition 108 states that any terms used in these conditions, that are not otherwise defined, will have the meaning given to them under the EPBC Act. The word "impact" is defined in the EPBC Act in s 527E. While the expression "significant impact" is not separately defined in the EPBC Act there are a number of authorities that bear upon the meaning of the provision. In short, these authorities suggest that a "significant" impact is one that is "important, notable, or of consequence having regard to its context or intensity": see for example, Krajniw v Brisbane City Council (No 2) [2011] FCA 563 at [10] and authorities there cited. There is no relevant uncertainty in the Decision created by the imposition of that condition.
216 By condition 61, the construction and operation of the barge landing facility must not have a significant adverse impact on cetaceans as a result of noise or vibrations, as demonstrated by maintenance of an exclusion zone and a maximum sound exposure level for any blasting or pile driving. Condition 62 provides that the approval holder must specify an exclusion zone and a maximum sound exposure in an environmental management plan relating to the construction of the barge landing facility. Thus, the environmental management plan will operate to give effect to condition 61.
217 Condition 62 further provides that a plan "satisfying State requirements and addressing the matters set out in this condition will be deemed to have been submitted and approved by the Minister". While this, at one level, might suggest a degree of abdication of satisfaction of the condition to the approval holder or the State, properly construed the provision merely requires the environmental management plan to satisfy State requirements and address the matters set out in the condition. If that occurs then the Minister by this condition has indicated in advance that he will treat the plan as one approved by him following submission. If the plan does not meet those requirements then it may be taken that the Minister would consider conditions 61 and 62 not to have been satisfied. The specification of "State requirements" (which should be construed as a reference to relevant State laws and not executive, ministerial or administrative directions) provides a certain external source of regulation and does not make the Decision uncertain. It does not delegate any decision-making authority to the State.
218 While condition 61 and condition 62 when read together appear to leave a degree of flexibility in the hands of the approval holder, the practical position is that the Minister retains a supervisory and approval role in relation to the content of the environmental management plan referred in condition 62. Conditions 61 and 62 individually and collectively do not introduce that degree of ambiguity or uncertainty that would suggest the Decision is uncertain.
219 Conditions 77 and 78 fall within Sch 6: Infrastructure corridors (rail, electricity, gas, water) and relate to consultation with indigenous people. In this context, condition 77, subject to condition 78, requires the approval holder to provide to the satisfaction of the Minister evidence of consultation with indigenous persons or groups with rights, claims or interests in an area where land disturbance would occur in relation to the activities covered by Sch 6. Condition 78 provides that where material is culturally sensitive and cannot be disclosed, the approval holder must advise the Department of the extent to which it cannot comply with condition 77 for that reason.
220 Condition 77 therefore applies generally in respect of the consultation with indigenous persons in relation to the matters specified in paras (a)-(d). The purpose of the consultation condition is evident. If, in the carrying out of an approved activity, land is to be disturbed and it has the potential to affect indigenous values or archaeological material, then:
the adequacy of surveys that identify sites of indigenous heritage value;
the need to establish protocols in relation to archaeological material;
the need to establish protocols in relation to the assessment of known indigenous heritage values, prior to construction, as well as any newly identified indigenous heritage values during construction; and
the obtaining of future possible "consents" to disturb indigenous heritage values from the relevant indigenous groups;
must be taken account of.
221 It may be assumed that the consents referred to will be those that are available under existing law, such as the Native Title Act 1993 (Cth), where individuals or groups have pre-existing native title rights or interests or a right to negotiate.
222 Conditions 77 and 78 in those circumstances relate to practical management issues in relation to identified environmental and heritage issues. The conditions may be considered authorised by s 134(1)(a). They do not on their face appear to depend upon s 134(3). They do, however, reflect the relevant objects of the EPBC Act expressed in s 3(1)(f) and (g) of the EPBC Act in relation to the interests of indigenous persons.
223 Nothing in the various conditions considered above, either individually or collectively, suggests that the conditions are beyond the power of the Minister under s 134 to impose conditions on an approval granted under s 133. Nor when taken collectively does the range of conditions suggest that the approval granted is invalid for lack of certainty.
224 What the conditions reflect is that the approved activity is a large and complex one. It raises many environmental and heritage issues. It is not surprising that there should be a number of conditions designed both to manage impacts or otherwise to protect environmental and heritage values that have been identified during the EIS and assessment report processes which informed the Minister's Decision.
225 In these circumstances the first proposition advanced by the appellant fails.
226 As to the appellant's second proposition, the appellant offers as examples of conditions that he contends should lead the Court to infer that the Minister has not satisfied himself that the proposed action should be approved - that is to say, has not actually exercised the approval power - conditions 32, 66 and 71. They may conveniently be dealt with in the following order: conditions 32, 71 and 66, as the appellant contends condition 66 infects the approval with invalidity for the same reasons as does condition 71.
227 Condition 32, which is within Sch 1: Mining and processing, along with a number of the other conditions discussed above, deals with mine closure. Condition 32 requires the condition 4 program to include a "mine closure plan" which answers the specifications of condition 32(a)-(i).
228 The primary judge accepted, at [62], that condition 32 would appear to leave the "major matter" of mine closure to be determined, but noted the Minister's reasoning set out in his statement of reasons for decision as follows:
6.36 The EIS demonstrates conceptually that the expanded mine can be closed and rehabilitated to a standard that would ensure long-term protection of the environment. Best practice mining standards require a comprehensive closure plan to be in place before mining commences. In particular, given that the tailings storage facility and, to a lesser extent, the rock storage facility, would retain above background radiation levels, a long term safety assessment is essential to support the detailed design of closure strategies and structures in the closure plan.
6.37 I therefore decided to impose conditions requiring a mine closure plan, including a safety assessment to determine the long-term risk to the public and the environment from the tailings storage facility and rock storage facility. I was satisfied that these requirements will ensure that appropriate environmental protection measures are in place after the closure of operations on site.
229 His Honour rejected the appellant's contentions that BHPB was left to formulate the "assessment criteria" mentioned in condition 32(a). He noted that the Minister has the power to withhold approval to the mine closure plan. His Honour considered the reference in condition 32(b) to the assessment criteria being "clear, unambiguous and specific" is to assist that process.
230 The primary judge's analysis should be accepted. While condition 32 demands "assessment criteria" that are "clear, unambiguous and are specific to the achievement of the specified environmental outcomes" and which are to include certain parameters and the like, what is required of BHPB is clear, as are the comprehensive safety assessment requirements and other requirements of the subparagraphs of condition 32. To the extent that there is any present lack of specificity about exactly what will need to be done by the approval holder to meet the terms of this condition, there might be some negotiation or exchange with the Minister that will lead to the Minister ultimately approving the plan in which these requirements are resolved. Thus, in the circumstances, there is no relevant uncertainty in the approval by reason of condition 32. The condition does not reveal that the Minister has failed to consider the environmental effects of an important issue and has left it until later. Indeed, the passage quoted by the primary judge from the Minister's statement of reasons indicates proper consideration. The approval power does not remain to be exercised by reason of the condition; it does not fail to consider the impact of an important impact or issue. Rather, the issue has been recognised and regulated by the condition.
231 The appellant also draws attention to condition 71 within Sch 6. It deals with rail line, water pipeline and electricity transmission lines infrastructure proposals not provided for by condition 70, as well as a gas pipeline, "if the approval holder proposes to construct [it]". The appellant says condition 71 also demonstrates that the Minister did not satisfy himself that the proposed action should be approved, on account of these substantive potential environmental issues being left for later determination.
232 Condition 71 should be regarded in the context of all conditions contained in Sch 6, but particularly conditions 69-76, which are as follows:
69. The conditions in this schedule apply to the construction of the rail line and infrastructure for electricity, water and gas, as described in the EIS.
70. The rail line, water pipeline and electricity transmission lines must be constructed on the alignments shown in Figures N1.4 (a) - (f) of the Olympic Dam expansion, Draft environmental impact statement 2009, Appendix N - Terrestrial ecology, unless otherwise approved by the Minister under condition 71.
71. If the Approval Holder proposes to construct the rail line, water pipeline or electricity transmission lines on a different alignment to that specified above, or if the Approval Holder proposes to construct the gas pipeline, the Approval Holder must prepare an infrastructure plan detailing the proposed alignment and submit the plan to the Minister for approval. The plan must demonstrate how the alignment has been selected to:
a. minimise the impact on the values of places on the National Heritage List, the World Heritage List and/or the Register of the National Estate
b. avoid and/or minimise impacts on nationally Listed Species and Ecological Communities, and migratory species, and other areas of environmental significance
c. avoid impacts on groundwater dependent listed threatened species or Ecological Communities, and migratory species, in the Great Artesian Basin
d. avoid and/or minimise, to the extent practicable, impacts on significant Indigenous heritage values.
72. If the proposed alignment for the gas pipeline passes between Lake Blanche and Lake Callabonna, the plan must include a review of the section from the 395 to 405 kilometre point from Olympic Dam by an appropriately qualified megafauna palaeontologist. The plan must include details as to how the Approval Holder will address any recommendations from that review to minimise impacts on fossils. The financial cost of the review will be borne by the Approval Holder.
73. The construction of the gas pipeline must not have a significant adverse impact on groundwater dependent listed threatened species or Ecological Communities, or migratory species, in the Great Artesian Basin.
74. Where construction will impact on the Cultana Training Area or the proposed expansion, or the Woomera Prohibited Area, the Approval Holder must consult with the Department of Defence before commencing that element of construction.
75. The Approval Holder must comply with any requirements by the Department of Defence to limit access to the Woomera Prohibited Area, in accordance with the Defence Force Regulations, as necessary for the protection of persons, property and official secrets.
76. Where a plan is required under this schedule, construction must not commence until the relevant plan is approved by the Minister. The approved plan must be implemented.
233 These conditions reflect recommendations made to the Minister in the assessment report provided by his Department. The question of rail line, water pipeline, electricity transmission lines and a gas pipeline infrastructure were there assessed. Condition 70 is unambiguous about the alignment on which the relevant rail line, water pipeline and electricity transmission lines (but not a gas pipeline) must be constructed. It is, however, the proviso - "unless otherwise approved by the Minister under condition 71" - and condition 71 itself that are the focus of the appellant's challenge.
234 Condition 71 has two purposes. First, it purportedly applies to facilitate the Minister's approval of alternative alignments of the condition 70 infrastructure. Secondly, it purportedly applies to facilitate the construction of the gas pipeline, if BHPB proposes to construct it.
235 The primary judge, at [65], noted that conditions 70 and 71 must be read together. He rejected an argument that condition 71 establishes that the Minister did not exercise the power he was authorised to exercise. He said the answer to that submission was that it is clear that the rail line, water pipeline and electricity transmission lines must be constructed as stated in condition 70 unless otherwise approved. His Honour added that the possibility of a gas pipeline was referred to in the BHPB's referral form given under the EPBC Act, and three possible options for the location of a gas pipeline were shown in the draft EIS. His Honour considered (without deciding) that the reference to the gas pipeline may well fall within the concept of "alternative proposals" under s 72(3), s 133(1A) and s 134(3)(h) of the EPBC Act, but, "in any event, the reference to a gas pipeline in condition 71 would not be sufficient to bring down the approval".
236 The appellant contends that the fact that there was a "default" pathway for the infrastructure other than the gas pipeline in condition 70, does not overcome the real problem in condition 71, which is that the Minister was purporting to give BHPB a right to propose, and to give to himself the power to approve, an as-yet-undescribed alternative proposal for that infrastructure pursuant to a condition and not pursuant to the mechanisms of the EPBC Act. The appellant further submits that consultation with indigenous groups in connection with infrastructure corridors that are to be part of that action, (under condition 71(d) and under conditions 77 and 78 discussed above) is also something that is to be undertaken later, rather than under the mechanisms of the EPBC Act.
237 BHPB submits that condition 71 cannot be properly construed without also reading conditions 69 and 70. BHPB submits that, to the extent the complaint is made by the appellant that the matters that follow in conditions 70 and 71 permit the approval holder and the Minister at large to do things that have not been assessed, the complaint is misconceived, because the scope of Sch 6 is restricted expressly by condition 69 to matters "described in the EIS".
238 BHPB notes that condition 70 approves a specific route for the nominated infrastructure other than the gas pipeline. It also notes that in the departmental assessment report the service corridors, as they were called, were discussed in section 5.6. It was there indicated that the proposed Olympic Dam expansion would require additional gas, water and electricity infrastructure and that, where practicable, the mains and transmission lines would align with existing infrastructure corridors to minimise environmental impacts and fragmentation. A 320 km water pipeline was identified. Additional high capacity transmission lines were also identified. So too was a gas pipeline, running underground for the majority of its length, which would connect Olympic Dam with natural gas supplies. It was noted that BHPB had identified three alternative configurations which were described as options 1, 2 and 3. Four key values were identified as "potentially impacted" by these proposed service corridors, which included Department of Defence facilities, natural heritage sites listed on the Register of the National Estate, historic heritage sites listed on the Register of the National Estate and indigenous cultural sites listed on the Register of the National Estate. The assessment report noted the South Australian assessment that identified risks with different options and, in particular, that proposed option 2 occurs within 1 km of a lake reserve that may potentially contain megafauna fossils; and also noted that the gas pipeline would create a new corridor through a nominated site and that BHPB would need to apply for a pipeline licence under South Australian legislation, which would require detailed information on the design, construction, operation and maintenance of the pipeline.
239 BHPB submits that the conditions in Sch 6, including the terms of condition 71, reflect proposals that have been identified, assessed and set out in the Department's assessment, which had already been commented upon following public exhibition of the draft EIS and assessed by the Department, pursuant to the mechanisms of the EPBC Act. BHPB submits that what the appellant now requires is a further and better assessment than that which has already occurred under the EPBC Act. BHPB says that in the assessment report the recommendations were made to ensure that environmental degradation in a number of respects is avoided.
240 BHPB submits that far from it being at liberty to choose its own path free of the gaze of assessment, exhibition and the like under the EPBC Act, the proposal and the conditions have been developed in detail, in an assessment that was publicly exhibited, considered, assessed and with conditions designed to minimise environmental impacts. Thus, BHPB submits that the complaint the appellant makes about a lack of public participation is, once condition 69 is taken into account, without substance.
241 It is undoubtedly necessary to first have regard to condition 69. Condition 69 is in terms that reflect the drafting style used in some earlier conditions that proceed from a reference to a component activity "as described in the EIS". For example, condition 61, considered above relative to the barge landing facility, provides that:
61. The construction and operation of the barge landing facility, as described in the EIS, must not have a significant adverse impact…
Condition 69 in a similar way provides:
69. The conditions in this schedule [Sch 6] apply to the construction of the rail line and infrastructure for electricity, water and gas, as described in the EIS.
242 This form of condition may be apt to indicate, when read with the approval itself, that the component activity described in the EIS is approved, subject of course to any statement or indication to the contrary in the conditions. However, the expression "as described in the EIS" may not take one very far where there are options expressed in the EIS. It may be that such a condition constitutes recognition that the component of the proposal referred to, as an activity, is accepted, but the details are subject to the requirements of the conditions. This should be accepted as the proposed construction of condition 69.
243 Thus, when it comes to the rail line, water pipeline and electricity transmission lines, condition 70 prescribes the particular alignments such infrastructure is to follow - "unless otherwise approved by the Minister under condition 71". Condition 70 crystallises the alignment the accepted infrastructure is to follow.
244 However, as to the gas pipeline described in the EIS, given the discussion of the three corridor options in the assessment report and the condition 70 prescription of the infrastructure alignment for infrastructure other than the gas pipeline, and the particular terms of condition 71 that include reference to the possible construction of the gas pipeline, it cannot be said that condition 69 approves a gas pipeline component on any particular alignment. Instead, alignment of any gas pipeline remains to be approved and approval to a proposed alignment must be sought if BHPB proposes to construct the gas pipeline.
245 This is confirmed by condition 72, in that, "[i]f the proposed alignment for the gas pipeline passes between Lake Blanche and Lake Callabonna" then the plan must include a certain review by an appropriately qualified megafauna palaeontologist and address recommendations from that review to minimise impacts on fossils. Until a proposed alignment is put forward under condition 71, it cannot be known whether condition 72 will apply. But if the alignment proposed passes between the two nominated lakes, then condition 72 will apply. While condition 72 obviously has regard to questions of environmental damage to megafauna discussed in the assessment report, this fact does not thereby imply that the gas pipeline must be restricted to an alignment option discussed in the assessment report.
246 Condition 73 will apply to the gas pipeline in any event, in that it provides that the construction must not have a "significant adverse impact on groundwater dependent listed threatened species or Ecological Communities or migratory species in the Great Artesian Basin". This condition would also appear to owe itself to the EIS and discussion in the assessment report.
247 Conditions 74 and 75 would appear to be referable to construction of any approved infrastructure affected by Sch 6, including the gas pipeline.
248 Condition 76 makes it clear that, where a plan is required, no construction can be commenced until a relevant plan is approved by the Minister. In other words, if condition 71 applies, then a plan must be approved and implemented. Condition 76 thereby gives the Minister final control over any gas pipeline construction, as well as any alternative rail line, water pipeline or electricity transmission lines infrastructure proposed under condition 71.
249 Condition 70 is certain. It does not depend for its operation on condition 71.
250 On one view, all that condition 71 does in respect of the approved infrastructure identified by condition 70, is provide for its variation, so long as the environmental values or considerations identified in condition 71 paras (a)-(d) are met, these values or considerations having been outlined in the assessment report and having informed the Minister's decision to impose condition 70. This view could be accepted if all that condition 71 does is permit BHPB to propose an alternative alignment to that prescribed by condition 70 on the basis that the alternative alignment will be one of those already assessed in the assessment report. This is because it will already have been assessed under the EPBC Act. As the primary judge said, the alternative may well be an "alternative proposal" under the Act.
251 The difficulty with this view, however, is that nothing in the Sch 6 conditions and particularly in conditions 70 and 71 limits the Minister's power to approve an alternative alignment of condition 70 infrastructure to options 1, 2 and 3 the subject of the assessment report. There is nothing in the terms of conditions 70 and 71 to prevent the Minister approving an alignment of such infrastructure not previously discussed in the EIS or the assessment report. The result is that by condition 71 the Minister has created, in himself, an infrastructure approval power, albeit one to be exercised by reference to the four values or considerations specified in condition 71(a)-(d), to approve the identified infrastructure but on a new alignment without any reference to the particular requirements and mechanisms specified in the EPBC Act that would otherwise apply in relation to such a fresh infrastructure proposal. Consequently, it may reasonably be said the approval containing condition 71 does not answer the description of an approval granted under s 133 in respect of the condition 70 infrastructure activity referred under the EPBC Act and the subject of the draft EIS. Or put another way, condition 71 is not authorised by s 134, as it does not involve the protection of the environment or the management of environmental impacts identified by the proposed activity, but provides for the assessment and approval of some other potential infrastructure proposal.
252 This analysis applies with equal, if not greater force, in relation to any proposal that may be advanced for approval under condition 71 of the alignment of the gas pipeline. There is nothing in the Sch 6 conditions that limits any proposed alignment or the power of the Minister to approve any proposed alignment in respect of the gas pipeline to an alignment reflected in the EIS or to options 1, 2 or 3 discussed in the assessment report. As a result, a fresh alignment of the gas pipeline described in the EIS might be proposed for approval under condition 71. Consequently, the approval containing condition 71 does not answer the description of an approval granted under s 133 in respect of the gas pipeline referred under the EPBC Act and the subject of the EIS. Or put another way, condition 71 in respect of the gas pipeline alignment is not authorised by s 134 as it does not involve the protection of the environment or the management of environmental impacts identified by the proposed activity, but provides for the assessment and approval of some other potentially fresh gas pipeline alignment proposal.
253 For these reasons, condition 71 should not be considered to be authorised by the EPBC Act and to be invalid both under the ADJR Act and the general law.
254 This then leads to the question whether the invalidity of condition 71 means that the whole of the Decision - the approval with all the conditions - must fall with condition 71. As noted above, the primary judge considered that even if condition 71 in relation to the gas pipeline were invalid, it would not "bring down the approval". With respect, this must be considered correct, both in respect of the gas pipeline infrastructure alignment as well as any alternative condition 70 infrastructure alignments.
255 It is well established that an invalid condition may be severable where it is not fundamental to the whole of the approval, but where it is it cannot be severed and the whole of the approval is invalid: Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 at 90 per Lord Reid and 102-103 per Lord Morris; Parramatta City Council v Kriticos [1971] 1 NSWLR 140; Winn at [212]-[216] per Stein JA, with whose reasons for judgment Spigelman CJ at [1] agreed); Kindimindi at [56] per Basten JA.
256 Condition 71 is not fundamental to the approval. Nor, as noted above, is it fundamental to the operation of condition 70. Condition 71 may be and should be severed from the approval.
257 The consequence of the severance of condition 71 is that BHPB remains able to propose an alignment to any gas pipeline infrastructure it proposes to construct, as well as new alignments of condition 70 infrastructure. However, should it wish to do so, its proposal will be affected by the operation of the EPBC Act.
258 The appellant also contends that condition 66, relating to the Port of Darwin handling facility, is objectionable for the same reasons that condition 71 is objectionable. Condition 66 is within Sch 5: Transport of copper and uranium oxide concentrate and Port of Darwin handling facility.
259 Conditions 64 to 67 should first be noted in order to appreciate the function of condition 66:
64. The transport of uranium oxide concentrate, the construction and operation of the Port of Darwin handling facility and rail transport of copper concentrate, as described in the EIS:
a. must not have a significant adverse impact on the Ecological Values of the Port Darwin wetlands
b. must not expose Members of the Public or Non-human Biota to radioactive releases above the dose limits recommended in the Code of Practice for Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing
c. must ensure exposure of Members of the Public to radioactive releases is as low as reasonably achievable and exposure of Non-human Biota is minimised to the lowest reasonable levels..
65. The Approval Holder must ensure that the transport and loading of copper concentrate uses a no release containment system and that transport of both copper concentrate and uranium oxide concentrate is consistent with the Code of Practice for the Safe Transport of Radioactive Material (ARPANSA 2008, or as amended).
66. Before commencing construction of the Port of Darwin handling facility, the Approval Holder must prepare an environment management plan for the facility, which includes:
a. design plans showing the type and extent of works proposed
b. a construction schedule and methodology, including plans and maps showing discharge points and emission controls for all construction stages
c. any potential impacts or effects of the proposed works on the environment during the construction and operational phases and the means by which adverse impacts will be avoided or mitigated.
67. A plan satisfying Northern Territory Government requirements and addressing the matters set out in condition 66 will be deemed to have been submitted and approved by the Minister.
260 The consequence of these four conditions is that: condition 64 deals with construction and operation of the handling facility; condition 65 deals with transport and loading; condition 66 deals with potential impacts or effects during the construction and operational phases; and condition 67 requires the relevant plan design to achieve the specifications of condition 66 according to "Northern Territory Government requirements".
261 Condition 64 applies to the transportation, construction and operation of the port, "as described in the EIS".
262 It is clear from condition 64 that, during the transportation phase and in the construction and operation of the port, members of the public and non-human biota must not be exposed to radioactive releases above the dose limits recommended in the Code of Practice for Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing (condition 64(b)).
263 By condition 65, transport and loading must use a "no release containment system" according to the nominated Code of Practice.
264 In this context, it cannot be said that condition 66 lacks any certainty or makes the approval uncertain or leaves for later assessment an as-yet-undescribed activity. Rather, construction must be according to a plan consistent with the laws of the Territory and the relevant code of practice, and which has been approved by the Minister. The condition in effect regulates construction of the approved activity which has been identified as carrying with it environmental risk.
265 The fact that the Minister can require revisions to the plan under condition 87, for example, would also appear to ensure Ministerial oversight of the entire plan approval process in any event and enable any adjustments as may be necessary from a continuing management perspective.
266 Contrary to the appellant's submission, condition 66 is not like condition 71. Condition 71 proposes an approval regime in respect of an activity generally which, while described, is potentially not in respect of any particular alignment or location. Condition 66 lacks this feature. The Port of Darwin area to which the construction and operation conditions apply, is clearly described in the EIS.
267 It should also be said in passing that the loose language in condition 67 in relation to the "Northern Territory Government requirements" may be contrasted with condition 62 which relevantly refers to "State requirements" without any reference to "Government". "State requirements", as noted above, plainly are limited to those imposed by State law. The expression "Northern Territory Government requirements" should be similarly construed.
268 Finally, as noted above, by this appeal ground the appellant presses for a finding of invalidity of the approval having regard to the totality of the conditions. In circumstances, however, where the individual conditions impugned do not disclose that the approval is uncertain or that it was beyond the power of the Minister to impose the relevant conditions (with the exception of condition 71), it is difficult to draw a conclusion from a suggested separate overall or "totality" analysis, that the conditions when read together make the approval uncertain, or that the conditions collectively are beyond the Minister's power to impose conditions, or that the approval power remains unexercised or may possibly result in the approval of an activity not referred under the EPBC Act, or that the approval lacks finality when the conditions are collectively considered.
269 In the result, save for condition 71 which should be severed from the approval granted, the second proposition also fails.