ERUJIN PTY LTD -v- JACOB [2017] WASC 35 (15 February 2017)

2 The granting of clearing permits is governed by the provisions of pt V div 2 of the Environmental Protection Act 1986 (WA) (the Act). Appeals to the Minister are governed by the provisions of pt VII of the Act.

3 Erujin has approached the court with two complaints about the manner in which the application for a clearing permit and the appeal were determined.

4 First, Erujin complains that the Appeals Convenor and the Minister denied it natural justice. On 16 July 2015, Erujin commenced proceedings by way of an application for judicial review (CIV 2096 of 2015) seeking a writ of certiorari quashing the Minister's decision on the ground that it was not afforded natural justice. Erujin also seeks a declaration that the Minister's decision dismissing the appeal was invalid, and the Appeals Convenor's report was a nullity and of no effect. The Minister and the Appeals Convenor are the respondents in these proceedings.

5 Second, Erujin complains that the CEO, the Appeals Convenor and the Minister did not act in accordance with law in the discharge of their respective functions under the Act, because they misinterpreted and misapplied relevant statutory provisions. On 24 November 2015, Erujin commenced proceedings by an originating summons (CIV 2875 of 2015) seeking declaratory relief to the effect that the Minister's decision dismissing the appeal and various decisions and reports made by the CEO and the Appeals Convenor are invalid. It also seeks a declaration that it is entitled to be issued with the clearing permit for which it applied. The Minister, the CEO and the Appeals Convenor are the defendants in these proceedings.

6 Although the CEO is not a respondent in the judicial review application, for simplicity I will refer to the respondents in CIV 2096 of 2015 and the defendants in CIV 2875 of 2015 as 'the respondents'.

7 On 22 December 2015, I made orders that evidence filed in each of the proceedings could be referred to and relied upon in the other proceeding, and that the two proceedings be heard together.

8 For the reasons that follow Erujin is not entitled to any of the relief it seeks. The application for judicial review and the originating summons should each be dismissed.

Statutory framework The grant of a clearing permit - pt V div 2 of the Act

9 Section 51C of the Act makes it an offence for a person to cause or allow 'clearing' unless, relevantly, the clearing is done in accordance with a clearing permit. 'Clearing' is defined in s 51A to mean, amongst other things, the destruction or removal of some or all of the native vegetation in an area.

10 Section 51E(1) - (2) sets out how an application for a clearing permit is to be made. Once an application for a clearing permit is received, and assuming the application complies with s 51E(1) - (2), the CEO must advise the applicant that the application has been received, invite any public authority or person whom the CEO believes has a direct interest in the subject matter of the application to comment on it, and advertise the application in the prescribed manner, inviting comment from any person who wishes to comment on the application: s 51E(4).

11 Section 51E(5) provides:

The CEO shall, after having taken into account any comments received within the specified period from any public authority or person from which or whom comments were invited under subsection (4)(b) or (c) and subject to sections 51O and 51P -

(a) grant a clearing permit subject to such of the conditions referred to in section 51H as the CEO specifies in the permit; or

(b) refuse to grant a clearing permit.

12 If the CEO refuses to grant a permit he or she must give the applicant written notice of that refusal: s 51E(6). A permit may be granted 'subject to such conditions as the CEO considers to be necessary or convenient for the purposes of preventing, controlling, abating or mitigating environmental harm or offsetting the loss of the cleared vegetation': s 51H(1). Section 51I provides a nonexhaustive list of the kinds of conditions that may be imposed.

13 Section 51O provides, relevantly:

(2) In considering a clearing matter the CEO shall have regard to the clearing principles so far as they are relevant to the matter under consideration.

(3) The CEO may make a decision that is seriously at variance with the clearing principles if, and only if, in the CEO's opinion there is a good reason for doing so. That reason must be recorded and published under section 51Q.

(4) In considering a clearing matter the CEO shall have regard to any planning instrument, or other matter, that the CEO considers relevant.

14 A 'clearing matter' includes an application for a clearing permit: s 51O(1). The 'clearing principles' means the principles set out in sch 5 to the Act: s 51A. Those principles include the following (sch 5 cl 1):

Native vegetation should not be cleared if -

(a) it comprises a high level of biological diversity; or

(b) it comprises the whole or a part of, or is necessary for the maintenance of, a significant habitat for fauna indigenous to Western Australia; or

...

(e) it is significant as a remnant of native vegetation in an area that has been extensively cleared; or

...

(h) the clearing of the vegetation is likely to have an impact on the environmental values of any adjacent or nearby conservation area.

15 For completeness, I note that s 51H(3) provides that the CEO must not impose a condition on a clearing permit that would, in the CEO's opinion, be seriously at variance with the clearing principles except to the extent necessary to give effect to a decision made under s 51O(3).

16 Section 51P provides, in summary, that in considering an application for a clearing permit the CEO must ensure that the permit is consistent with any 'approved policy'. The CEO is also entitled in some circumstances to impose conditions on a permit which are more stringent than those required by an approved policy: s 51P(3)(a).

Clearing permit appeals - pt VII

17 If the CEO refuses to grant a clearing permit, an aggrieved applicant is entitled to lodge with the Minister a written appeal setting out the grounds of appeal: s 101A(1). The appeal is to be decided by the Minister: s 107(2), s 109(3).

18 Once an appeal is lodged, the Appeals Convenor must request the CEO to provide a report to the Minister on the appeal, and the CEO is obliged to provide such a report: s 106(1)(b), s 107(1). Section 107(2) provides that, on receiving the CEO's report, 'the Minister may allow or dismiss the appeal to which that report relates and the decision of the Minister under this subsection shall be final and without appeal'. This section appears to be something of an anomaly because s 109(3), to which I will come shortly, contemplates that the Minister will have before him or her not only the CEO's report but also a report from the Appeals Convenor. In my view, the correct construction of the statute as a whole is that the Minister is not entitled to determine an appeal until both the CEO's report and the Appeals Convenor's report are before him or her.

19 Apart from requesting a report from the CEO, the Appeals Convenor's functions include consulting with the appellant and any other appropriate person to determine whether or not the point at issue in the appeal can be resolved (s 106(1)(c)), and advising the Minister generally on matters concerning appeals under the Act: s 107B(2)(a).

20 Section 107B(1) provides that s 109 applies in relation to the Appeals Convenor as if the Appeals Convenor were an appeals committee. Section 109 relevantly provides:

(1) In considering an appeal, an appeals committee -

(i) the CEO...; and

...

(iii) the appellant;

(aa) may consult such other persons as it considers necessary; and

(b) shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, shall not be bound by any rules of evidence and may conduct its inquiries in whatever manner it considers appropriate.

...

(2) On completing its consideration of an appeal, an appeals committee shall... report to the Minister on its findings and recommendations in respect of the appeal, and the Minister shall allow or dismiss the appeal -

(a) if the appeal is from a decision of the Minister, in accordance with; or

(b) if the appeal is from a decision other than a decision of the Minister, having regard to,

those recommendations and the decision of the Minister under this subsection shall be final and without appeal.

21 Section 106(1)(d) provides that, in the case of an appeal which is not against a decision of the Minister, the Appeals Convenor is required to consider and report to the Minister on the appeal. That obligation overlaps substantially with the obligations imposed on the Appeals Convenor by s 109(3) read with s 107B(1). Section 107B(1) appears to recognise that duplication when it provides that 'a report of the Appeals Convenor made under s 106 has effect as if it were a report of an Appeals Committee'.

22 Erujin relied upon affidavits sworn by Mr Ian McKellar on 5 September and 9 November 2015, and sought to rely upon an affidavit sworn by Dr Elizabeth Mattiske sworn on 9 March 2015.

23 Mr McKellar is a project manager who acted on Erujin's behalf throughout the application and appeal process. Mr McKellar's affidavit evidence was largely directed to providing the background to the application and appeal from Erujin's perspective. He attached to his affidavits a number of documents provided to Erujin as a result of applications made to the relevant agencies under the Freedom of Information Act 1992 (WA).

24 Dr Mattiske is a consultant ecologist engaged by Erujin to advise on the environmental values of its land. The respondents objected to Dr Mattiske's affidavit. I reserved the question of the admissibility of Dr Mattiske's affidavit and advised the parties that I would include my ruling in these reasons. I will return to the objection to Dr Mattiske's affidavit later in these reasons.

25 The respondents relied upon affidavits sworn by Ms Golnar Nabizadeh on 29 September 2015, and Ms Kerry Laszig on 12 February 2016.

26 Ms Nabizadeh is employed as a Senior Appeals Assessor in the Office of the Appeals Convenor. She was the Appeals Assessor who assisted the Appeals Convenor with Erujin's appeal. Ms Nabizadeh gave evidence about the general procedure followed by the Office of the Appeals Convenor in relation to appeals from clearing permit decisions and about the steps taken in the consideration of Erujin's appeal.

27 Ms Laszig is employed as the Director, Licensing and Approvals by the DER. In her affidavit she gave evidence about the general procedure for dealing with applications for clearing permits and appeals within the DER and about the steps taken within the DER in relation to Erujin's application and appeal.

28 The background facts were uncontroversial and, in outline, I find them to be as follows.

29 On 14 February 2013 Erujin was granted an amended clearing permit that entitled it to clear four hectares of native vegetation on its Kalgan land.

30 On 7 August 2013 it filed the application for a clearing permit the subject of these proceedings. The application was supported by a report by Dr Mattiske.

31 The permit sought would have authorised Erujin to clear a further 13 hectares of native vegetation. The evidence indicates that the vegetation may be inhabited, traversed or visited by at least four vulnerable or endangered species of native wildlife, namely the Western Ringtail Possum (pseudocheirus occidentalis), Carnaby's Cockatoo (calyptorhynchus latirostris), Baudin's Cockatoo (calyptorhynchus baudinii) and the Forest Red-Tailed Black Cockatoo (calyptorhynchus banksii naso). The precise significance of the land for these species has emerged as one of the primary factual disputes between the parties.

32 On 4 September 2013 the DER sought advice and comment on Erujin's application from the Commissioner of Soil and Land Conservation and the City of Albany respectively. Advice was received from the Commissioner on 17 October 2013. That advice raised no objection to the grant of a clearing permit. The City of Albany provided a response on 2 October 2013. The City's response referred to an unsuccessful attempt to rezone Erujin's land under the relevant local planning scheme, but does not appear to have raised any objection to the grant of a clearing permit.

33 On 3 October 2013 Ms Crawford, of the DER, sought advice from Mr Deon Utber, of the Department of Parks and Wildlife (the DPaW). The email from Ms Crawford to Mr Utber requesting his advice indicated that:

[f]rom the quick desktop assessment undertaken thus far it appears that the application occurs within a [sic] extensively cleared landscape ... Any local knowledge that you may have in regards to the area under application or the impacts the proposed clearing may have would be greatly appreciated.

34 On 9 October 2013 Mr Utber replied to that email. His email reply attached a report of a site visit made by officers of the department on 3 May 2012 and contained the following comment:

The site visit report is applicable to clearing application [sic] and the only additional advice I will provide is with regard to the comment below about the property occurring in an extensively cleared landscape. The property occurs in Zone B of the Coastal Macro Corridor (see attached report) but is adjacent and partially 'land locked' by areas of Zone A (high connectivity). It is also immediately east of a vegetation pinch point due to the proximity to Oyster Harbour. Therefore further clearing in this area will lead to a reduction in connectivity through this part of the landscape.

35 On 24 October 2013 the DER provided Erujin with a Preliminary Assessment Report and covering letter that indicated the application for a clearing permit was likely to be refused for a number of reasons. Those reasons included (i) that the land proposed to be cleared formed habitat for the three cockatoo species mentioned earlier, (ii) that the land formed part of a 'macro habitat corridor' that supported the movement of endemic fauna through the landscape, including the Western Ringtail Possum, and (iii) that the local area had already been heavily cleared.

36 The author of the report expressed the view that the proposal was at variance with clearing principles (a), (b) and (e) in sch 5 cl 1 to the Act and might be at variance with principle (h).

37 The inconsistency with principle (a) was said to arise because the land 'contains habitat for fauna of conservation significance', namely the three cockatoo species, and formed part of an 'ecological linkage' within an extensively cleared landscape.

38 The proposed clearing was said to be at variance with clearing principle (b) because the land 'forms significant habitat' for the three cockatoo species, 'may form significant habitat for the dispersal of [the Western Ringtail Possum]' (though the report also indicates that the clearing was 'not likely to remove significant primary habitat for this species'), and 'has been classified as regionally significant for the movement of endemic fauna'.

39 As to principle (e), the author of the report noted that '[a]lthough the vegetation remaining within the bioregion and vegetation association 3 retain levels higher than national objectives, the local area (10 kilometre radius) has been extensively cleared', with only 20% of native vegetation still extant. The author repeated his or her conclusion, also expressed under the rubric of clearing principle (b), that the land proposed to be cleared formed significant habitat for the three cockatoo species and 'may form' significant habitat for the dispersal of the Western Ringtail Possum and was classified as regionally significant for the movement of endemic fauna. On that basis, the author concluded that the vegetation proposed to be cleared 'is a significant remnant within a highly cleared landscape'.

40 As to principle (h), the author noted that there were three nature reserves within a 10 kilometre radius of the land (to the south, northwest and east of the land respectively) and that the land 'may form a linkage for genetic dispersal between the reserves to the south and north of the application area [t]he removal of which may impact on their long term environmental value'.

41 On 5 December 2013 Mr McKellar wrote to the DER responding to the Preliminary Assessment Report and setting out what Erujin contended was the proper interpretation and application of the clearing principles.

42 On 16 January 2014 the CEO wrote to Erujin to inform it that its application for a clearing permit had been refused. Attached to the letter was a Clearing Permit Decision Report. Before he made the decision to refuse the application, the CEO was provided with, amongst other things, a Clearing Permit Assessment Report. The Clearing Permit Assessment Report and the Clearing Permit Decision Report were in almost identical terms to the Preliminary Assessment Report.

43 On 6 February 2014 Erujin lodged an appeal to the Minister in accordance with s 101A(1) of the Act. The appeal was supported by further submissions from Mr McKellar, contained in a covering letter dated 6 February 2014. The submissions in support of the appeal overlapped to a considerable extent with the submissions Mr McKellar had provided on 5 December 2013 in response to the Preliminary Assessment Report; many of the submissions made by Mr McKellar in his letter of 5 December 2013 letter were repeated verbatim in his letter of 6 February 2014.

44 On 17 February 2014 the Office of the Appeals Convenor requested the CEO to report to the Minister on the appeal pursuant to s 106(1)(b) of the Act, and on 5 March 2014 the CEO provided his report. The CEO's report addressed each of Erujin's grounds of appeal and recommended that the appeal be dismissed. The CEO's report was not provided to Erujin.

45 Subsequent to the provision of the CEO's report, and in the process of preparing the Appeals Convenor's report to the Minister, staff of the Appeals Convenor's Office undertook various consultations.

46 On 1 April 2014 there was a meeting between Mr Robert Armstrong, a director of Erujin, Mr McKellar and Dr Mattiske and one other person on behalf of Erujin, and Mr JeanPierre Clement, the Deputy Appeals Convenor, and Ms Nabizadeh on behalf of the Appeals Convenor's Office.

47 On 3 and 10 April 2014 Ms Nabizadeh spoke to Mr Ron Johnstone of the Western Australian Museum and discussed the significance of the land proposed to be cleared as habitat for cockatoos. In the course of the second conversation, on 10 April 2014, it appears Mr Johnstone repeated advice obtained by him from Mr Tony Kirkby, who was an expert on cockatoos previously consulted by Erujin (some of Mr Kirkby's findings were included in Dr Mattiske's report which accompanied Erujin's application for a clearing permit). I refer to this conversation in more detail at [90] of these reasons.

48 On 10 April 2014 Ms Nabizadeh drafted an email to Mr McKellar (to which Mr Clement made some amendments) that referred to the advice received from Mr Johnstone and sought further comment from Mr McKellar. I refer to the contents of this draft email in more detail at [90].

49 The draft email was sent to the Appeals Convenor for comment but was not sent to Mr McKellar.

50 On 15 April 2014 Ms Nabizadeh met with Dr Ken Atkins, of the DPaW, to discuss the significance of clearing to Western Ringtail Possum habitats generally, and to understand the impact of clearing peppermint trees on Western Ringtail Possums' habitat. Prior to the meeting, Dr Atkins was provided with a copy of the CEO's Clearing Permit Decision Report, but he was not provided with any other documents (one of Erujin's complaints is that Dr Atkins was not provided with any of the material lodged by it in support of the application). I refer to the advice provided by Dr Atkins later in these reasons at [114].

51 On 17 April 2014 Ms Nabizadeh sent Mr McKellar an email in the following terms:

Dear Ian,

As I have not heard from you following our meeting on 1 April, I thought it appropriate to give you an update on the status of the investigation of your client's appeal.

Given issues raised in the DER's assessment and your client's appeal with respect to listed fauna species that may be impacted by the proposed clearing, we have had officer level discussions with WA Museum regarding the black cockatoo species, and the Department of Parks and Wildlife regarding black cockatoo species and western ringtail possums (WRP). By way of summary, the feedback from these discussions was consistent with the DER's assessment of the proposed clearing - that is, the area proposed to be cleared appears to be part of significant habitat for black cockatoos and WRP.

If your client would like to submit any further information in respect to the appeal, it would be appreciated if this is done by Monday 28 April. I propose to conclude a draft report on the appeal for the Appeals Convenor's consideration by 2 May 2014.

Please let me know if you have any questions.

Kind regards

Golnar

(emphasis supplied)

52 Erujin submits that this email was considerably less informative than the email drafted on 10 April 2014 but never sent.

53 The penultimate paragraph of the 17 April 2014 email invited Mr McKellar to respond by 28 April 2014. Mr McKellar did provide some further comments by email on 28 April 2014. Those comments include a comment directed to the DER's conclusion that the vegetation formed part of a corridor through which the threatened species moved and thus constituted significant habitat for the purpose of clearing principle (b). Mr McKellar contended:

Infrequent use of an item of bush, to the extent identified by the author of the DoER report, is not a 'habitat' let alone a significant one.

54 On 6 May 2014 Ms Nabizadeh received an email from Mr McKellar attaching a letter from Dr Mattiske that contained further information and submissions on behalf of Erujin.

55 On 21 May 2014 the Appeals Convenor provided her report to the Minister. A copy was not provided to Erujin. The Appeals Convenor's report recommended that the appeal be dismissed and on 3 June 2014 the Minister dismissed the appeal. On the same date, the Minister published reasons for dismissing the appeal, pursuant to reg 8 of the Environmental Protection Regulations 1987 (WA).

56 The Appeals Convenor's report was provided to the Minister by the Appeals Convenor's Office as part of a bundle of documents described as the 'Minister's package'. The package consisted of:

(1) a one page memorandum from the Appeals Convenor to the Minister setting out the identifying details of the appeal and a list of attachments;

(2) a one page 'appeal summary sheet' summarising the background, grounds of appeal, and findings and recommendation of the Appeals Convenor;

(4) the CEO's report to the Minister, with some but not all of the attachments to that report (the attachments given to the Minister included Erujin's application for a clearing permit, two reports from Dr Mattiske, the letter from the CEO advising Erujin of the refusal of the permit, and the Clearing Permit Decision Report);

(6) a draft of a letter from the Minister to Erujin advising that the appeal had been dismissed.

57 The Minister was supplied with an updated version of the draft letter to Erujin on 30 May 2014. I note that the Minister's published reasons for dismissing the appeal are in almost identical terms to the draft letter.

The judicial review application Leave to proceed

58 The application for judicial review was not made within the sixmonth limitation period as required by O 56 r 1 of the Rules of the Supreme Court (WA). In his affidavit sworn on 5 September 2015, Mr McKellar explained the delay in making the application was because he and Mr Armstrong were involved in the management of other projects on behalf of Erujin and did not have time to focus on steps that might be taken to review the Minister's decision for some months after receipt of the Minister's decision. When they did turn their attention to the Minister's decision, Mr Armstrong instructed Mr McKellar to make applications to the relevant agencies under the Freedom of Information Act. The last of the documents produced in response to those applications were received by Mr McKellar on 22 January 2015, less than six months before the application was issued.

59 This is not an entirely satisfactory explanation of the delay, but I accept that making applications under the Freedom of Information Act was an appropriate step for Erujin to take and that this involved delay. Overall, the delay has not caused any particular prejudice and I consider that leave to bring the application should be granted.

60 Erujin's grounds may be summarised as follows: the Minister's decision should be quashed because it was denied procedural fairness by the conduct of the Appeals Convenor in the discharge of her functions under s 109 of the Act. Erujin contends the Appeals Convenor denied it procedural fairness because:

1. she failed to provide Erujin with a copy of the CEO's report;
2. she did not send the draft 10 April 2014 email to Mr McKellar that Erujin says disclosed, in detail, the case it had to meet, and thus deprived it of the opportunity to refute matters adverse to its interests that were subsequently raised in the Appeal Convenor's report;
3. in preparing her report, she relied upon advice from officers of the WA Museum that was not disclosed to Erujin for rebuttal or comment; and in the course of eliciting the advice from the officers of the WA Museum, she disclosed the views of the DER without disclosing the relevant content of the materials provided by Erujin in support of its appeal, thereby both creating preconditions for bias and displaying bias towards the DER in her dealings with the officers and in her report;
4. in preparing her report, she relied upon advice from an officer of the DPaW that was not adequately disclosed to Erujin for rebuttal or comment and:

(a) in an exchange of emails prior to receipt of the advice she displayed bias towards the views of the DER; and

(b) in the course of eliciting the advice from the officer, she disclosed the assessment report of the DER without disclosing the relevant content of the materials provided by Erujin in support of its appeal, thereby displaying bias towards the DER in her dealings with the officer and in her report;

1. she provided the Minister with a draft of her report and incorporated into the draft suggested changes made by the Office of the Minister without affording Erujin an equal opportunity to comment on the draft report.

61 In its submissions, Erujin raised two further allegations of a denial of procedural fairness by the Appeals Convenor:

1. she did not provide it with a copy of Mr Utber's email of 9 October 2013; and
2. she took into account irrelevant considerations, being the content of documents that had come into her possession concerning a decision of the State Administrative Tribunal (SAT) made in December 2008 pursuant to the Planning and Development Act 2005 (WA) about a potential sub-division of Lot 50. The documents were attached to Ms Nabizadeh's affidavit as attachment 'GN10' and comprised the orders made by the SAT, a report of a hearing and various other documents (the Planning materials).

62 These contentions were the subject of submissions by the parties and I will treat them as if they were additional grounds.

63 Although the grounds raised issues of bias on the part of the Appeals Convenor and her staff, those issues were not addressed in Erujin's oral or written submissions and I proceed on the basis that the complaints about bias were abandoned. I have, however, considered the evidence of the communications between Ms Nabizadeh and Mr Johnstone and Dr Atkins that I take to be relevant to the bias issue and, in my view, they provide no support for the allegations of bias raised in the grounds.

64 The respondents accepted that the Appeals Convenor was subject to a duty to afford procedural fairness to Erujin. The issue between the parties was the content of that duty. The question is how much of the material in the possession of the Appeals Convenor and her officers had to be disclosed to Erujin.

65 There was no dispute about the relevant principles that must be applied. They may be summarised as follows.

1. The rules of procedural fairness 'ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material': SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [32].
2. The application and content of a duty of procedural fairness depend on the proper construction of the relevant statute: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J).
3. Procedural fairness is a matter of substance and not form and requires that a person faced with a potentially adverse decision know the case he or she has to meet. The ability to make meaningful responsive submissions is dependent upon notification of what is alleged being given to affected parties: Coffey LPM Pty Ltd v The Contaminated Sites Committee [No 2] [2013] WASC 98 [73] (Hall J) applying Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231.
4. There will be a denial of procedural fairness if, in all the circumstances, there has been actual unfairness or practical injustice in the decision making process: Apache Northwest Pty Ltd [220] (Buss JA, as his Honour then was).
5. The extent of the requirements of procedural fairness is conditioned by the particular facts in each case. There is no general requirement that an applicant be informed of the sources of all information which a decision maker receives concerning his or her case or the content of that information, the guideline is fairness: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502, 506 (Fox J), see also the observations of Merkel J in Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 [70] to the effect that the decision-maker must bring to the applicant's attention the critical issue or factor on which the decision is likely to turn, and that it is sufficient that the gravamen or substance of the issue or factor be brought to the applicant's attention or that the applicant be on notice of its 'essential features'.
6. The principles of procedural fairness 'ultimately involve matters of degree and judgment' and 'are not susceptible to hard and fast rules' and the context in which such questions fall to be determined is relevant: McKay v Commissioner of Main Roads [2013] WASCA 135 [158] (Murphy JA, Martin CJ & Buss JA agreeing).
7. A useful but not definitive approach is to ask whether the party affected by the decision could reasonably have anticipated the adverse conclusion, and if it had the opportunity of dealing with it, then its failure to make submissions or to provide evidence on the point could not permit the conclusion of denial of procedural fairness: Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [225] (Edelman J).

The admissibility of Dr Mattiske's affidavit sworn on 9 March 2016

66 The respondents objected to Dr Mattiske's affidavit on the basis that it provided new evidence regarding the merits of the clearing permit application. Senior counsel for Erujin informed me that the affidavit was relied upon as a foundation for a contention that Erujin could have provided evidence to the Appeals Convenor on the issue of the significance of the South Coastal Macro Corridor and not for the purpose of establishing facts in support of its claim for a declaration that it was entitled to the clearing permit. On that basis, I am prepared to admit the evidence contained in Dr Mattiske's affidavit.

The context in which the allegations of denial of procedural fairness are to be assessed

67 The allegations that the Appeal Convenor denied Erujin procedural fairness must be considered in the context of how the issues were identified and addressed in the course of the clearing permit application and appeal. Viewing the allegations in this context is necessary to make a judgment on whether Eruja has suffered actual unfairness or practical injustice.

68 As noted earlier, the application for a clearing permit was supported by a report prepared by Dr Mattiske in July 2013.

69 Dr Mattiske has provided advice on the environmental values of Lot 50 over a number of years. Mr McKellar attached to his affidavit of 5 September 2015 copies of various reports about the environmental values of the land prepared by Dr Mattiske between 2009 and 2013. These included a report entitled 'Fauna Findings on the Two Remnant areas on Candyup, Lot 50 Nanarup Road, Kalgan', apparently prepared for Erujin in August 2012. This report summarised the findings of Ms Maureen Francesconi and Mr Tony Kirkby, who inspected Lot 50 seeking evidence of the activities of western ringtail possums and cockatoos respectively. Dr Mattiske concluded this report with a summary in the following terms:

The site inspections have indicated that there are values present, despite historical impacts from grazing and clearing, that will need referral to both State and Commonwealth agencies. To assist in the timely delivery of these outcomes it may be worthwhile sending updated information to both the State and Federal agencies at the same time to minimize [sic] delays. As both the Western Ringtail Possum and the Cockatoos as recorded are listed as threatened at the State and Federal levels their presence raises additional issues that need addressing.

70 Thus it was apparent that the clearing of native vegetation on Lot 50 would necessitate an evaluation of the value of that vegetation as habitat for western ringtail possums and cockatoos.

71 In her July 2013 report, submitted in support of the clearing permit application, Dr Mattiske made the following observations about fauna values:

5.8 Key Fauna Values

5.8.1 Western Ringtail Possum

The Western ringtail possum prefers the Peppermint stands (Agonis flexuosa), and although these occur in the central part of the survey area; the degree of disturbance to the understory reflects the extensive and historical impacts of cattle in this section of the survey area.

Scats of the Western Ringtail Possum were collected in the densest stands of Agonis flexuosa located in the valley north of the dam during the assessment in August 2012. In February 2013, additional scats of the Western Ringtail Possum were located in the forests and woodlands of Eucalyptus marginata and Corymbia calophylla in the northern remnant area (Figures 1 and 2, Table 3). The scats were generally located on logs in upper valleys and in moister areas where moss was observed growing on logs and where the logs had uneven surfaces. On the basis of work in 2012 and 2013, the main concentrations of scats are in the Peppermint stands in the valley north east of the homestead and north of the eastern dam and in the less disturbed remnant in the north.

Discussions with two zoologists indicated that at this time of the year the young male possums tend to move through the landscape and consequently some of the scats observed may relate to this seasonal movement and may not necessarily reflect animals that are residing in the respective areas. As indicated in the attached figure, the scats are largely restricted to a few of the larger remnants and therefore the impact of localised clearing of trees in the already disturbed open pasture and disturbed remnant areas is unlikely to impact on the Western Ringtail Possums. (emphasis added)

5.8.2 Cockatoos - Nesting Hollows

Tony Kirkby, who is recognised as one of the main specialists on the endangered cockatoos, identified a possible nest hollow in a larger tree at 590585E and 6133653N during his field visit in 2013 on the southern fringes of the northern remnant area (Figures 1 and 2). Previously a nest hollow was located in the smaller section of woodland adjacent to Nanarup Road, which has very few trees of a suitable size to provide a nest hollow. This latter hollow was located in a Marri (Corymbia calophylla) tree near the north-east corner at 591169E: 6132284N in August 2012. This south facing hollow was chewed and worn and showed signs of recent use. Given the time of year it may have been used by Forest Red-tailed Black Cockatoos.

The trees with nesting hollows should be avoided as per the current EPBC Act referral guidelines (2012). Consequently all trees with hollows (see figures 1 and 2), whether Marri (Corymbia calophylla), Jarrah (Eucalyptus marginate) or Eucalyptus cornuta and nearby trees should be avoided so that the hollows are protected. Trees with hollows which are currently being utilised at various times for breeding and roosting should not be disturbed without appropriate legal approvals in place.

Clearing applications for localised areas should take into account the context of the proposed clearing activities (e.g. previous agricultural activities, the ability of some of these trees to persist in the longer term and the proportion and location of the trees and remnants that will remain after proposed clearing). As such the removal of the occasional tree in a highly disturbed agricultural areas [sic] should not be considered to result in significant impact on the black cockatoos.

5.8.3 Cockatoos - Foraging for Food

Five Baudin's Cockatoos were observed feeding on seeds from Marri Trees and foraging evidence by Baudin's Cockatoo and Forest Red-tailed Black Cockatoo was also present (Table 4, Figures 1 and 2).

Evidence of Forest red-tailed Black Cockatoo feeding on seeds from Jarrah was also noted in the general area but not in the survey areas.

During the site visit in 2012, two Forest red-tailed Black Cockatoos were seen near the northern survey area and Carnaby's Cockatoos were heard in the distance south of Nanarup Road. In 2013, two Carnaby's Cockatoos were heard calling to the south from 590585E 6133653N.

Clearing applications for localised areas should take into account of the context of the proposed clearing activities (e.g. previous agricultural activities, the ability for some of these trees to persist in the longer term and the proportion and location of the trees and remnants that will remain after clearing). As such the removal of the occasional tree in a highly disturbed agricultural areas [sic] should not be considered to result in a significant impact on the foraging activities of the black cockatoos providing there is sufficient seed and food in the remnants and nearby areas.

72 In the 'Discussion and Conclusions' section of the July 2013 report Dr Mattiske stated:

As the proposed clearing activities avoid trees with hollows which the threatened cockatoo species have been utilising and the main areas supporting the Western Ringtail Possum (as evident from the concentration of confirmed scats) then the proposed activities are not considered to have a significant impact on these species.

73 At this point two matters may be noted. First, Dr Mattiske included in her observations the suggestion made by unidentified zoologists that the presence of possum scats raised the possibility that Western Ringtail Possums crossed the areas to be cleared in the course of seasonal movement as opposed to reflecting that the possums lived in the vegetation to be cleared, though that possibility was left open. Second, Dr Mattiske's approach in her report was to record the findings of Ms Francesconi and Mr Kirkby and draw her own conclusions about the value of the vegetation to be cleared for the purpose of the two species.

74 In my summary of the background facts I have referred to the contents of the Preliminary Assessment Report, but it is of some importance to consider how the relevant findings and conclusions are formulated. The critical passages are as follows:

(a) Native vegetation should not be cleared if it comprises a high level of biological diversity.

Comments Proposal is at variance to this Principle

...

Mattiske Consulting (2013) conducted a fauna survey of the application area during which Baudin's cockatoos were observed feeding within the survey area, evidence of forest red tailed blackcockatoo feeding was recorded and individuals were observed near the application area and numerous calls consistent with Carnaby's cockatoos were heard. These species are all listed as rare or likely to become extinct under the Wildlife Conservation Act 1950 (WC Act) and vulnerable or endangered under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Two potential nest hollows were recorded adjacent to the application area and one of these was chewed and worn showing signs of recent use (Mattiske Consulting, 2013).

The fauna survey of the application area recorded western ringtail possum scats at various locations within lot 50. The majority of the scats were recorded within Eucalyptus forests and given the time of year that they were recorded, it is likely that the scats were from male individuals moving through the landscape (Mattiske Consulting, 2013). This species is listed as a rare or likely to become extinct under the WC Act 1950 and as a vulnerable under the EPBC Act 1999.

The application area has been highlighted as part of a macro habitat corridor defined in the Western Australian South Coast Macro Corridor Network (Department of Conservation and Land Management, 2006) and as it falls within a highly cleared landscape, the vegetation proposed to be cleared is likely to be significant for the movement of endemic fauna through the landscape.

The application area contains habitat for fauna of conservation significance, forms part of an ecological linkage and is located within an extensively cleared landscape, given this it is at variance to this clearing principle.

(b) Native vegetation should not be cleared if it comprises the whole or a part of, or is necessary for the maintenance of, a significant habitat for fauna indigenous to Western Australia.

Comments Proposal is at variance to this principle

...

A confirmed Carnaby's cockatoo roost site has been mapped 10 kilometres south west of the application area and the area under application has been mapped as an unconfirmed feeding site for Carnaby's cockatoo. Areas mapped as unconfirmed feeding sites are areas of remnant vegetation in the Jarrah Forest IBRA Bioregion that may provide important feeding resources for Carnaby's cockatoo. These areas were mapped based on the presence of vegetation types that Carnaby's cockatoo show preference for when choosing a food source.

Mattiske Consulting (2013) conducted a fauna survey of the application area during which Baudin's cockatoos were observed feeding within the application area, evidence of forest red-tailed blackcockatoo feeding was recorded and individuals were observed near the application area and numerous calls consistent with Carnaby's cockatoos were heard. Two potential nest hollow were recorded adjacent to the application area and one of these was chewed and worn showing signs of recent use. Given the time of year it is likely that the species utilising the hollow is the forest red-tailed black-cockatoo (Mattiske Consulting, 2013).

The Carnaby's cockatoo recovery plan (DEC, 2012) summarises habitat critical to the survival for Carnaby's Cockatoos as:

• the eucalypt woodlands that provides nest hollow is used for breeding, together with nearby vegetation that provides feeding, roosting and watering habitat that supports successful breeding;
• Woodland sites known to have supported breeding in the past and which could be used in the future, provide adequate nearby food and/or water resources are available or are re-established; and
• In the non-breeding season the vegetation provides food resources as well as the sites for nearby watering and night roosting that enable the cockatoos to effectively utilise the available food resources.

The recovery plan also states, 'success in breeding is dependent on the quality and proximity of feeding habitat within 12 kilometre of nesting sites. Along with the trees that provide nest hollows, the protection, management and increase of this feeding habitat that supports the breeding of Carnaby's cockatoo is a critical requirement for the conservation of the species' (DEC, 2012).

As the application area falls adjacent to two potential nest sites, is within 10 kilometres of a third, has been observed to be feeding habitat and falls within 700 m of a major water course, the application for fills [sic] all three habitat requirements deemed critical to Carnaby's cockatoo survival.

Stands of Agonis flexuosa have been identified within the application area, this species is synonymous with habitat for western ringtail possums. The fauna survey of the application area (Mattiske Consulting, 2013) recorded western ringtail possum scats at various locations within lot 50. The majority of the scats were recorded within Eucalyptus forests and given the time of year, it is likely that the scats were from male individuals moving through the landscape.

...

The application area has been mapped within strategic zone B of the Western Australian South Coast Macro Corridor Network, and is surrounded by areas of strategic zone A (DEC, 2006). Zone A areas are defined as cells where large remnants (greater than 30 ha) and protected areas create the most direct link between core habitat areas. Zone B cells are identified as having large areas (greater than 30 ha) of woody vegetation and protected areas providing habitat linkages, but which do not create the most direct link between protected areas.

As the application area forms significant habitat for Calyptorhynchus banksii subsp. naso (forest red-tailed black cockatoo). (Calyptorhynchus baudinii (Baudin's cockatoo) and Calyptorhynchus latirostris (Carnaby's cockatoo), may form significant habitat for the dispersal of Pseudocheirus occidentalis (western ringtail possum) and has been classified as regionally significant for the movement of endemic fauna; the application is at variance to this clearing principle.

75 It is apparent from these passages of the Preliminary Assessment Report that the author has taken the findings of the fauna survey set out in the Dr Mattiske's July 2013 report (including the possibility that the vegetation is used by Western Ringtail Possum in the course of seasonal movement) and considered those findings in the context of the Western Australian South Coast Macro Corridor Network (the Macro Corridor Report) and the Carnaby's Cockatoo Recovery Plan (the Cockatoo Recovery Plan) and reached conclusions that differ from those of Dr Mattiske.

76 As one would expect, Dr Mattiske was aware of the Macro Corridor Report. On Erujin's behalf she had prepared a Flora and Vegetation Survey of the land in June 2009 in which she expressed the view that Lot 50 was unlikely to form a useful integral component of Macro Corridor Zone A. In her affidavit she accepted that 'the issue of the Macro Corridor was signalled in general terms...'. The Macro Corridor Report was a document available publicly on the DER's website when the clearing permit application was made. The Macro Corridor Report contains an explanation of the theory that underpins the maintenance of vegetation corridors and records that:

[1.2] Increased landscape connectivity, or 'the degree to which the landscape facilitates or impedes movement among resource patches' [Taylor et al. 1993] is now recognised internationally as an important factor in abating the loss of biodiversity through habitat fragmentation. It is a fundamental component in the planning and designing of modern protected area networks for the long-term conservation of many of the world's significant threatened fauna in fragmented landscapes...

77 The DER also published on its website 'A guide to the assessment of applications to clear native vegetation under pt V of the Environmental Protection Act 1986' (the Clearing Permit Guide). The section of the Clearing Permit Guide dealing with principle (b) contains the following statement:

The ecological relationships between fauna, vegetation and their physical environment are affected by habitat decline and a consequent loss of ecological functions and processes. These may include:

...

• Loss of corridors, steppingstones (ecological linkages) and buffering vegetation;

78 The section of the guide dealing with principle (h) contains the following statement:

Ecological linkages and buffers in the context of this principle contribute to the functioning and viability of existing conservation estate by:

• establishing connectivity between conservation areas and other areas of native vegetation;

79 It was plain from the Preliminary Assessment Report read against the background of the Macro Corridor Report and the Clearing Permit Guide that an issue Erujin was required to address was the DER's view, adverse to Erujin's application, that the native vegetation formed part of the South Coast Macro Corridor and constituted an ecological link for threatened endemic species. No one reading the Preliminary Assessment Report informed by some understanding of the theory underpinning the Macro Corridor Report and the commentary in the Clearing Permit Guide would be under any misapprehension of the potential significance of native vegetation providing 'connectivity' in the context of clearing permit applications.

Erujin's submissions in response to the Preliminary Assessment Report

80 In his letter to the DER dated 5 December 2013, Mr McKellar made the following submission about clearing principle (b):

the author of the PAP does not apply the term 'habitat' correctly. The word 'habitat' as used within this principle is where several of species of native fauna (either rare or not rare) actually reside, not where one or two of such species (rare or not rare) might happen by chance to pass through (from a 'roost site' purported to be 10 km away).

...

Properly understood, this principle does not require the maintenance of 'ecological linkages' if the significant indigenous fauna habitat is capable of being maintained after the fact of the proposed clearing. The author of the PAP must establish that the significant fauna habitat would fail if the clearing proceeded (and there is no evidence at all of that).

81 It is clear from these submissions that Mr McKellar was alive to the need for Erujin to address the DER's view that the native vegetation formed part of an ecological link or corridor used by threatened species. Mr McKellar's submission was directed to establishing that the DER's officers had misinterpreted clearing principle (b) and that principle (b) did not require the maintenance of 'ecological linkages'. The submission was not directed to the factual foundation for the DER's view.

82 The passages extracted from the Preliminary Assessment Report that I have set out above were repeated in the Clearing Permit Decision Report.

83 The appeal submissions made by Mr McKellar in his letter dated 6 February 2014 repeated the submissions set out at [80] of these reasons made in his letter of 5 December 2013.

84 The CEO's report repeated the conclusions on the clearing principles and the reasons for refusing a clearing permit contained in the Clearing Permit Decision Report. In the context of clearing principle (b), the CEO's report included the following statement:

The application area forms part of a regionally significant linkage for the movement of endemic fauna'.

85 This statement reflected the conclusions on clearing principle (b) contained in the Preliminary Assessment Report and the Clearing Permit Decision Report.

86 For completeness, I record that Erujin criticised the CEO's report on the basis that it contained a suggestion that the Cockatoo Recovery Plan had been updated since the assessment of Erujin's successful application to clear four hectares of native vegetation in February 2013. Erujin maintained that there had been no update. This criticism was not, however, relied upon to support the allegations of denial of procedural fairness.

87 In her affidavit, Ms Nabizadeh deposed that though she did not have a detailed recollection of the meeting held on 1 April 2014 with Erujin's representatives, she did recall that she and Mr Clement went through the CEO's report and discussed the clearing principles referred to in it. She referred in her affidavit to notes that she had made before the meeting of what she intended to discuss at the meeting (these notes were attached to Mr McKellar's affidavit sworn on 5 September 2015). The notes refer in two places to the role of the native vegetation as constituting a macro corridor. Ms Nabizadeh also attached to her affidavit a file note, prepared by her and amended by Mr Clement, of what was discussed at the meeting. This file note records that the meeting lasted approximately 2 1/2 hours and includes the following:

• JP and I spoke with the appellant on all four grounds of its appeal concerning the DER's assessment on clearing principles (a), (b), (e) and (h).
• The appellant (as represented by Civil Tech) challenged the DER's interpretation of the clearing principles, and prioritised issues surrounding this issue. The meeting therefore focused primarily on matters of interpretation.

88 The file note does not record any discussion about whether the native vegetation constituted part of a macro corridor. But when regard is had to Ms Nabizadeh's note of the topics that she intended to discuss at the meeting included the role of the native vegetation as part of a macro corridor, and that the subsequent file note recorded a discussion about all four grounds of appeal concerning the DER's assessment of the relevant clearing principles, it is likely that Ms Nabizadeh informed Erujin's representatives of the conclusion contained in the CEO's report that the application area forms part of a regionally significant linkage for the movement of endemic fauna, and I find that she did so.

89 As noted earlier, Ms Nabizadeh had two conversations with Mr Johnstone of the WA Museum. In the course of the second conversation, on 10 April 2014, it appears Mr Johnstone repeated advice obtained by him from Mr Kirkby.

90 The draft email of 10 April 2014 refers to Ms Nabizadeh's conversation with Mr Johnstone and to his account of Mr Kirkby's views. Ms Nabizadeh attached to her affidavit some handwritten notes of her conversation on 10 April 2014 with Mr Johnstone. Those notes contain the words 'Good woodland' and 'imp...site - woodland worth preserving'. The most complete and, thus, reliable account of the substance of Mr Kirkby's advice appears in the draft email, the relevant paragraphs of which read as follows:

Black Cockatoo

In the report by Libby Mattikse (July 2013), it was noted that Tony Kirkby had undertaken a field visit in 2013, and identified a nest hollow, and that previously, a nest hollow had been found further south. Mattiske's report recommended nest hollows be avoided as per the EPBC Act guidelines (2012).

In relation to foraging habitat, Mattiske's report noted evidence of Marri trees being used for foraging by Baudin and Forest redtailed cockatoos. There was no comment on the quality or the extent of the habitat for the three black cockatoo species, however with respect to both nesting and foraging habitat, Mattiske concluded that the clearing of the occasional tree in highly disturbed agricultural land should not be considered to result in a significant impact to black cockatoos.

In light of this advice, and the discussions at our meeting, we sought advice on the general values of the area and the vegetation proposed to be cleared from Ron Johnstone at the WA Museum (who specialises in black cockatoos). Mr Johnstone discussed the matter with Mr Kirkby, and advised that the foraging vegetation surrounding the nesting hollows was regarded as important for black cockatoos, and could itself be regarded as significant. From these discussions, it appears the view of the Department of Environment Regulation (DER) as to the values of the site as being part of a significant habitat for fauna (black cockatoos) was justified. We would appreciate your comments on this matter, and specifically, any additional guidance you have in terms of a fauna survey etc which provides information on the type and quality of black cockatoo habitat within the area proposed to be cleared. (emphasis supplied)

91 On the basis of Ms Nabizadeh's notes of her meeting with Dr Atkins and from the summary of Dr Atkins' advice that appeared in the Appeals Convenor's Report, I find that Dr Atkins gave advice to Ms Nabizadeh to the following effect: Western Ringtail Possum communities take time to move between woodland areas, particularly females of the species who travel more slowly than males; large distances between suitable habitats may threaten Western Ringtail Possum communities and increase the risk of predation from other species; and, given the decrease in the population of Western Ringtail Possum populations in the Manjimup, Busselton and Dunsborough areas, the population in and around Albany may play an increasingly critical role in the survival of the species.

92 As noted earlier in these reasons, on 6 May 2014 Mr McKellar sent Ms Nabizadeh a letter prepared by Dr Mattiske setting out further submissions on the application of the clearing principles. Relevantly, the letter read as follows:

1. The extent of vegetation in Lot 50 is insignificant in the wider regional context. To support this interpretation, the total area covered by the ARVS study was 125,415.31 ha of which 42,960.66 ha remained in 'Native Vegetation' at the time of the ARVS (data source ARVS dataset, 2013). Consequently I strongly suggest that there is a need to justify the interpretation of the 'significance' of 13.3 ha of degraded remnant in the regional context.
2. The argument that the proposed clearing areas are part of a significant habitat for the Western Ringtail Possum appears difficult to justify. The absence of nesting sites was recorded by Maureen Francesconi and by Dr Libby Mattiske during field assessments (noted in the Mattiske Consulting July 2013 report). It was noted in the Mattiske Consulting July 2013 report that the younger male possums move through the landscape at the time of field observations and consequently some of the scats may relate to seasonal movement and may not necessarily reflect animals residing in the respective areas. As noted the main areas of Peppermint which is preferred by the Western Ringtail Possum is being avoided in the proposed clearing area. As the degraded remnants are fragmented and separated from other remnants it appears difficult to justify that the scattered proposed clearing areas are part of a significant habitat for this species.
3. The argument that the proposed clearing areas are part of a significant habitat for the Cockatoos appears difficult to justify on the basis of the field effort by Tony Kirkby (a very experienced Cockatoo specialist), the degraded nature of the proposed clearing areas, the limited areas of the proposed clearing areas in the regional context (see point 1 above and the Mattiske Consulting July 2013 report) and the extent of the vegetation in the regional context beyond the area under consideration which is available for foraging. Therefore the concept that the proposed 13.3 ha of degraded areas is part of a significant habitat for the cockatoos appears unwarranted and inappropriate in both the local and regional context.

I therefore believe that the proposed clearing areas are not part of a significant habitat for these fauna species.

93 Erujin submitted that the 'opinion evidence' of Mr Utber about the Macro Corridor was not disclosed by the CEO or the Appeals Convenor and this nondisclosure meant Erujin was unable to produce evidence to rebut Mr Utber's opinion.

94 The respondents submitted that the substance of Mr Utber's opinion was disclosed in Preliminary Assessment Report and the Clearing Permit Decision Report.

95 For ease of reference, I will set out again the relevant part of Mr Utber's email of 9 October 2013:

the only additional advice I will provide is with regard to the comment below about the property occurring in an extensively cleared landscape. The property occurs in Zone B of the Coastal Macro Corridor (see attached report) but is adjacent and partially 'land locked' by areas of Zone A (high connectivity). It is also immediately east of a vegetation pinch point due to the proximity to Oyster Harbour. Therefore further clearing in this area will lead to a reduction in connectivity through this part of the landscape.

96 Dr Mattiske's acknowledgment that the issue of the Macro Corridor had been signalled in general terms understated by a considerable margin the effect of the relevant passages of the Preliminary Assessment Report and the Clearing Permit Decision Report to which I have referred at [79]. Those passages articulate in clear and specific terms that the application area had been highlighted as a macro habitat corridor for threatened endemic species. The issue was identified as one Erujin was required to address both for the purposes of the original application and for the purposes of the appeal. And, in fact, Erujin did attempt to address this issue by means of Mr McKellar's submissions to the effect that the Departmental officers had interpreted the clearing principles incorrectly. On the basis of the findings I have made about the discussion that took place at the meeting on 1 April 2014, Erujin knew that the issue remained alive at the appeal stage. It was open to Erujin to put forward further material from Dr Mattiske on the topic of the significance of the macro corridor, but it did not do so.

97 The Appeal Convenor was not required to disclose Mr Utber's email: the substance of his view and the significance attached to it had been disclosed in clear terms to Erujin and its representatives and no unfairness or practical injustice flowed from the fact that it was not disclosed.

98 Adjudged in the context of the contents of Preliminary Assessment Report, the Clearing Permit Decision Report and the disclosure of the content of the CEO's report by Ms Nabizadeh and Mr Clement at the meeting on 1 April 2014, I am satisfied that nondisclosure of the CEO's report did not cause any unfairness or practical injustice.

99 The CEO's report did not contain adverse material, the substance of which was not disclosed in the earlier reports provided to Erujin, nor did it identify new issues. The issues addressed in the CEO's report were the same as those identified in the earlier reports and those issues were discussed at the 1 April 2014 meeting.

100 The respondents raised a further argument, namely that because the CEO's report was a matter that the Minister could, but was not obliged to, take into account in making a decision on the appeal, its content was not a precondition to the exercise of the Minister's power to decide the appeal and certiorari would not lie in respect of the CEO report: Hot Holdings Pty Limited v Creasy [1996] HCA 44; (1996) 185 CLR 149, 180 (Dawson & Toohey JJ). The respondents submitted that even if the CEO's report was invalid, certiorari would not lie in respect of the Minister's decision because he was not obliged to take the CEO's report into account.

101 I do not accept that this submission provides an answer to a complaint of a failure to afford procedural fairness by the Appeals Convenor. The issue is not whether the CEO's report was invalid but whether nondisclosure of the report was unfair or resulted in practical injustice.

102 Although I am satisfied that the non-disclosure of the CEO's report in this case did not constitute a breach of the rules of natural justice, it is difficult to understand why, in appeals of this nature, the CEO's reports are not disclosed to the affected party as a matter of routine practice.

Non-disclosure of WA Museum advice - Mr Kirkby's advice

103 As I have noted, Dr Mattiske's July 2013 report relied upon the findings made by Mr Kirkby. The authors of the Preliminary Assessment Report and Clearing Permit Decision Report referred to Mr Kirkby's findings and considered them in the context of the Cockatoo Recovery Plan.

104 The gravamen of Mr Kirkby's views, as relayed to Ms Nabizadeh through Mr Johnstone and recorded in the draft email of 10 April 2014, was that foraging vegetation surrounding nesting hollows was regarded as important for black cockatoos and could itself be regarded as significant.

105 The passages taken from the Preliminary Assessment Report and Clearing Permit Decision Report, set out at [79] above, identify the same matters: the reports identify the importance or significance of vegetation in which the cockatoos can forage (feeding habitat or foraging vegetation) being located near nesting hollows. Put differently, Mr Kirkby's reasoning for concluding that vegetation surrounding nesting hollows could itself be regarded as significant and the reasoning set out in the two reports is the same.

106 I am satisfied that Erujin's representatives were aware that an issue that might be resolved adversely to it was that the native vegetation could be regarded as significant habitat for cockatoos because of its proximity to the nesting hollows that had been identified by Mr Kirkby that meant the vegetation could be used by cockatoos for foraging.

107 In her email to Mr McKellar of 17 April 2014, Ms Nabizadeh disclosed to him that 'officer level' discussions had taken place with the WA Museum regarding the black cockatoo species and that the 'feedback' was consistent with the DER's assessment of the proposed clearing; that is, that the area proposed to be cleared appeared to be part of significant habitat for black cockatoos. I do not consider that it was necessary for Ms Nabizadeh to identify that it was Mr Kirkby who was the source of the officer level advice. I think that the position might have been different had Mr Kirkby expressed opinions to Dr Mattiske to the effect that the vegetation was not significant and had subsequently expressed a different view, but it is clear from Dr Mattiske's July 2013 report that the conclusion expressed in that report to the effect that the vegetation was not significant for cockatoos was Dr Mattiske's opinion and not that of Mr Kirkby.

108 In summary, Erujin was informed of the issue that might be resolved against it by the content of the DER reports, and those reports set out the reasoning that might lead to the adverse conclusion. Erujin was informed that the feedback from officers of the WA Museum was consistent with the DER's assessment.

109 I am satisfied that there was no unfairness and no practical injustice in not disclosing Mr Kirkby's advice.

110 In any event, as noted above, Dr Mattiske made a further submission on the issue of the significance of the vegetation for cockatoos, though the submission did not engage with the reasoning based on the Cockatoo Recovery Plan set out in the DER reports.

111 It follows from my conclusion that the non-disclosure of Mr Kirkby's advice did not involve a breach of procedural fairness that no unfairness resulted from the failure to send that part of the draft email that concerned Black Cockatoos to Erujin.

112 The draft email also raised the issue of the significance of the native vegetation for the Western Ringtail Possum species. The draft referred to the contents of Dr Mattiske's report on the subject of the Western Ringtail Possum and asked for additional guidance on the extent to which the vegetation was used by the species either as a resident population or as a corridor moving from one area to another. This part of the draft constituted a request for information on an issue identified in Dr Mattiske's July 2013 report and developed in the DER reports. The draft did not identify a new issue that might be resolved adversely to Erujin and self-evidently it did not contain new material. No unfairness or practical injustice resulted from the failure to disclose that part of the draft email that concerned the Western Ringtail Possum.

113 The advice provided by Dr Atkins to Ms Nabizadeh did not raise an issue that was not also raised in either the Preliminary Assessment Report or in the Clearing Permit Decision Report. Those reports identified, in clear terms, that there was an issue about whether the vegetation to be cleared formed part of a corridor that enabled the movement of a threatened endemic species, and that the DER had formed a view adverse to Erujin on this issue. The requirements of procedural fairness did not necessitate the disclosure of Dr Atkins' advice.

114 The advice provided by Dr Atkins confirmed that the Western Ringtail Possum moved across the landscape and such movement is assisted if native vegetation, affording protection and habitat, is preserved and the distance between areas of such vegetation is not too great. This advice did not give rise to a new issue and did not identify new material adverse to Erujin's interests. The view that the vegetation formed part of the macro corridor was expressed in the Preliminary Assessment Report. That view was founded upon the possibility raised by Dr Mattiske, that the vegetation was crossed by Western Ringtail Possums in the course of seasonal movement; that is, the vegetation formed part of a corridor used by the species. Dr Atkins' advice reinforced that possibility. Dr Atkins' reference to a decline in the numbers of Western Ringtail Possums in other parts of the south-west of Western Australia is an observation that does no more than make the point that the species is threatened - a matter plain to all.

115 Ms Nabizadeh disclosed the substance of her discussions with Dr Atkins in her email to Mr McKellar sent on 17 April 2014. In that email she referred to Dr Atkins as an officer of DPaW but did not disclose his identity. The requirements of procedural fairness did not oblige her to do so.

116 In any event, and as noted at [92], Dr Mattiske did make a further submission on the issue of the significance of the vegetation for Western Ringtail Possums, but she did not engage with the reasoning in the DER reports.

Non-disclosure of the Appeals Convenor's report

117 In Apache Northwest, Buss JA observed at [218] that procedural fairness does not ordinarily require the decision-maker to reveal a proposed conclusion to a person to whom procedural fairness must be accorded. His Honour observed, however, that it may be necessary in a particular case for an adverse conclusion to be disclosed and for the person to be given an opportunity to comment on or make a submission in respect of it, if the proposed conclusion could not reasonably have been anticipated.

118 In addition, disclosure is limited by practical matters - the deliberative process must come to an end at some point if the decision is to be made: Aronson & Groves, Judicial Review of Administrative Action (5th edition, 2013) [8.180].

119 In the course of considering an appeal the Appeals Convenor is obliged to consult the CEO and the appellant: s 109(1). On completion of the consideration of an appeal, the Appeals Convenor must report his or her findings and make recommendations to the Minister: s 109(3). The imposition of an obligation on the Appeals Convenor to disclose a draft of her report before it is submitted to the Minister does not sit easily with the process established by s 109 of Act. Of course, the Appeals Convenor is not the final decisionmaker but, in my view, the requirements of procedural fairness do not oblige the Appeals Convenor to provide a draft of her report to the appellant. The imposition of such an obligation is inconsistent with the statutory regime for appeals.

120 Further, the Appeals Convenor's report in this case did not contain any conclusions that could not reasonably have been anticipated by Erujin, and I am of the view that there was no requirement to provide Erujin with a copy of it for comment before providing it to the Minister.

121 Erujin's grounds of appeal assert that the Appeals Convenor provided a draft of her report to the Minister's office and incorporated changes suggested by the Minister's office. The evidence does not support this assertion. There is evidence that there was a request to make a minor and materially inconsequential amendment to the draft covering letter to be sent to Erujin enclosing the Minister's decision, but this is not a foundation for alleging a lack of procedural fairness in the making of the substantive decision.

122 Erujin submits that the Appeals Convenor allowed her report to be influenced by the Planning materials that were irrelevant for the purposes of the appeal.

123 The respondents submit that the Planning materials did not constitute 'irrelevant considerations' and, in any event, there is no evidence that they were taken into account as they are not referred to in the Appeals Convenor's report or in the Minister's decision. The respondents supported the first limb of this submission by reference to the well-known principle that the factors which a decision-maker is bound to consider or is prohibited from considering are determined by the construction of the statute in which the discretionary power is conferred and, if the discretion is unconfined by the statute the relevant and irrelevant considerations must be determined by implication from the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 - 40. The respondents submitted that the Act provided for a very broad range of matters that may be relevant to the consideration of an appeal by the Appeals Convenor and, in this respect, referred to the Appeals Convenor's power to consult such persons as he or she considers necessary and to conduct his or her inquiries in whatever manner he or she considers appropriate (see s 109).

124 There is no evidence that the Appeals Convenor took the Planning materials into account in formulating her report and making her recommendations to the Minister. In fact the evidence supports the conclusion that the Appeals Convenor did not take the possibility that Lot 50 might be subdivided in the future (that possibility being the subject matter of the Planning materials) into account. In her report, the Appeals Convenor refers to the possible subdivision and states that it will not be considered in the report. Thus, I do not accept Erujin's contention that the Appeals Convenor and the Minister took into account irrelevant considerations. Further, given that the CEO is directed to have regard to any planning instrument or other matter that he considers relevant (s 51O(4)), I do not accept Erujin's contention that the Planning materials constituted irrelevant considerations.

125 For the reasons I have set out above, Erujin has not made out any of the failures to accord procedural fairness alleged by it and its application for judicial review must be dismissed.

The application for declaratory relief brought by originating summons Declarations sought

1. the Minister's decision dismissing its appeal was invalid;
2. the decision of the CEO refusing its application for a clearing permit was invalid;
3. the CEO's report was void and of no effect;
4. the Appeals Convenor's report was void and of no effect; and
5. it is entitled to be granted the clearing permit for which it applied.

127 The grounds relied on by Erujin are lengthy. It is unnecessary to set them out in detail. In support of its argument that the respondents failed to act according to law it contends:

1. The Minister was required to give personal consideration to all materials presented by Erujin in determining the appeal and he did not do so: grounds 3, 4 and 5 - 'the requirement for personal consideration grounds'.
2. The respondents were required to have 'a high level of satisfaction of proof of a principle', that is, they had to be satisfied that a clearing principle 'had been proved' as a positive fact before an application for a clearing permit could be refused on the ground that clearing of native vegetation would offend a clearing principle and the respondents could not have had that level of satisfaction in respect of the relevant principles: grounds 6 and 8 - 'the standard of proof grounds'.
3. The proper application of s 51O of the Act and the clearing principles conditions the exercise of the power to grant or refuse a permit to clear and each of the respondents failed to interpret and apply the clearing principles correctly resulting, ultimately, in the invalidity of the Minister's decision. The errors in interpretation and application included, but were not limited to, the argument summarised in (2) that the respondents did not apply the correct standard of proof: grounds 7, 8, 9 10, 11 and 12 - 'the condition on the exercise of power grounds'.

128 Erujin has failed to make out this ground for two reasons. First, the Minister is not required to give personal consideration to all relevant materials. Second, in this case, as a matter of fact I am not satisfied that the Minister did not give personal consideration to the relevant materials. These reasons are developed in the paragraphs that follow.

Was the Minister obliged to consider all materials presented personally?

129 Erujin's principal submissions were as follows.

130 First, a 'decision' necessarily requires personal consideration by the appellate decision maker. The fact that the CEO and the Appeals Convenor are obliged to provide reports to the Minister does not obviate the need for the Minister to give personal consideration to the relevant materials. It was contended that an appeal procedure in which the decision maker did not consider the appellant's materials but only reports from the original decision maker and an intervenor (the Appeals Convenor) was 'palpably not an appellate procedure at all'.

131 Second, the decision affected Erujin's property rights and thus in considering the appeal the Minister was required to act judicially and was bound to decide the appeal on the substantial merits of the case according to law: Ridge v Baldwin [1963] UKHL 2; (1964) AC 40. It is implicit in the requirement to act judicially that the decision maker must give personal consideration to the materials.

132 Third, in the context of s 109 of the Act, an appeal means an appeal in the strict sense; that is, the Minister must decide whether the decision of the CEO was right on the materials that the CEO had before him or her, and the Minister cannot discharge this obligation without giving personal consideration to the materials that the CEO had before him or her. Erujin submitted that it was impermissible for the Minister to consider new material introduced by the Appeal Convenor's report in the course of determining the appeal.

133 First, the respondents submit that in the context of statutory decision making the nature of the required decision and the obligations imposed on the decision maker vary according to the provisions and obligations of the legislation. It was submitted that Erujin's contention that the Minister is required to consider all relevant materials personally is not supported by the provisions of the Act or any authority.

134 Second, the respondents submit that compliance with the process set out in s 109 of the Act for consultation followed by the submission to the Minister of a report of the findings and recommendations of the Appeal Convenor would be sufficient for a valid decision of the Minister. The fact that relevant materials were not provided to the Minister personally does not render the decision invalid.

135 Third, the respondents rely upon the observations of Brennan J (as his Honour then was) in Peko-Wallsend (66) to the effect that the collective knowledge, experience and expertise of those who serve the Crown and the Minister's department are to be treated as the Minister's own knowledge and expertise.

136 Fourth, the respondents submit that Erujin's reliance on the proposition that the Minister was required to act judicially as a means of reinforcing its argument that the Minister was required to consider relevant materials personally is misplaced. The respondents contend that the intention of Parliament that the Minister's functions be administrative rather than judicial can be inferred from the structure of the Act, the role of the Appeals Convenor in consulting with individuals and collating information before providing a recommendation to the Minister, and the fact that the Minister was a member of the executive: see Hancock v Executive Director of Public Health [2008] WASC 224 [51] (Martin CJ). Moreover, the respondents submit that there is no longer a requirement that an administrative decision-maker act 'judicially' in order to be subject to judicial review: Eclipse Resources Pty Ltd v Department of Environment and Conservation [2010] WASC 360 [62] - [65] (Corboy J).

137 Fifth, in response to the submission that an appeal to the Minister is an appeal in the strict sense, the respondents rely on aspects of the functions of the Appeals Convenor in the appeal process as highlighting inconsistencies between the appeal regime under pt VII of the Act and an appeal in the strict sense. These inconsistencies are: that the Appeals Convenor is permitted to gather material not before the CEO for consideration by the Minister; the obligation on the Appeal Convenor to 'act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms'; and, that the Appeal Convenor is not bound by any rules of evidence and may conduct inquiries in whatever manner he or she considers appropriate.

138 The question of the materials the Minister must consider when deciding whether to allow or dismiss an appeal against a refusal to grant a clearing permit brought pursuant to s 101A of the Act is to be determined by reference to the provisions of the Act.

139 Erujin's submission that the Minister must consider all the materials personally is not supported by the provisions of the Act and is inconsistent with them.

140 There is no express provision in pt VII of the Act that imposes an obligation on the Minister to give personal consideration to all the materials relevant to an application or an appeal. No basis for the implication of such an obligation is to be found either in the express provisions of the Act or in its objects. If the Minister was obliged to consider all materials personally, it is difficult to understand what is to be achieved by imposing on the Appeals Convenor the obligation to prepare a report setting out findings and recommendations. Further, given the high volume of clearing applications requiring the Minister to give personal consideration to all materials on such appeals would have the capacity to impose a very substantial burden on the Minister. This militates against the implication of such an obligation.

141 The express terms of s 109 of the Act do, however, provide positive support for the conclusion that the Minister is not obliged to have regard to anything other than the recommendations of the Appeals Convenor. This conclusion flows from the structure of the appeals regime: the Appeals Convenor has a statutory obligation to give consideration to an appeal; and he or she is obliged to consult the CEO, the appellant and such other person as he or she considers necessary before providing a report to the Minister setting out findings and recommendations in respect of the appeal. Section 109(3)(b) provides that the Minister shall have regard to the Appeals Convenor's recommendations in deciding whether to allow or dismiss the appeal. The contention that the Minister is obliged to consider other materials is inconsistent with this express statutory obligation.

142 Thus, the statutory obligations on the Appeals Convenor, and the statutory obligation on the Minister to have regard to the Appeals Convenor's recommendations stand in the way of construing pt VII of the Act as imposing an obligation on the Minister to consider all the materials personally. Accordingly, the Minister is not subject to such an obligation. In particular, the Minister was not obliged to give personal consideration to the 'actual material' considered by the CEO and the Appeals Convenor.

143 Although strictly it is unnecessary for me to do so, I will make some brief comments on the submissions made as to whether:

• the appeal is an appeal in the strict sense; and
• in considering an appeal the Minister is acting judicially or administratively.

144 An appeal against a refusal to grant a clearing permit, brought pursuant to s 101A of the Act, is not an appeal in the strict sense as submitted by Erujin. It is clear from the consultation process to be undertaken by the Appeals Convenor that matters additional to those taken into account by the CEO in making the original decision may be considered by the Appeals Convenor in making his or her recommendations, and thus may be taken into account by the Minister. Further, an appeal in the strict sense requires an appellant to demonstrate error on the part of the original decision maker. Both the process of consultation to be undertaken by the Appeals Convenor and the appeals regime generally are inconsistent with an obligation on the part of the appellant against a clearing permit decision to demonstrate error.

145 Finally, while it may be accepted that an appeal against a refusal of a clearing permit deals with valuable property rights, when regard is had to the legislative scheme governing clearing permits and appeals arising from the grant or refusal of clearing permits, the decision made by the Minister is administrative in character rather than judicial.

What materials were provided to the Minister and considered by him personally in this case?

146 In its written submissions, Erujin complains that the Minister only had regard to that part of the CEO's report provided to him by the Appeals Convenor (I understand this to be a reference to the fact that not all the attachments to the CEO's report were provided to the Minister) and the Appeals Convenor's report.

147 The attachments to the CEO's report not provided to the Minister were: the advertisement of Erujin's clearing permit application published in The West Australian newspaper; the Preliminary Assessment Report; Mr McKellar's letter responding to the Preliminary Assessment Report; the refusal letter; the Clearing Permit Guide; the Cockatoo Recovery Plan; and the emails exchanged between Ms Crawford and Mr Utber regarding the connectivity of the area.

148 Erujin contended that the Appeals Convenor's report was deficient because it contained only a 'purported' summary of Erujin's application, a 'purported' summary of Mr McKellar's submissions, and no reference to Dr Mattiske's report.

149 Erujin contends that the Minister had no regard to the application itself; Mr McKellar's submissions to the CEO or his appeal submissions, or to Dr Mattiske's report. I do not accept this submission.

150 At [56] I have listed the materials that were included in the 'Minister's package' prepared by Ms Nabizadeh. Contrary to Erujin's complaint, the Minister's package included Erujin's original application, Dr Mattiske's report, and Mr McKellar's appeal submissions.

151 It was submitted on the Minister's behalf that there was no evidence that the Minister did not give personal consideration to the materials provided to him. I accept this submission.

152 Erujin also complains that the Minister did not personally have regard to 'the actual material' considered by both the CEO and the Appeals Convenor. The 'actual material' to which it is said the Minister did not have regard is not identified. To the extent the 'actual material' was included in the Minister's package I reject the complaint for the reason just given, namely, that there is no evidence that the Minister did not consider the material.

153 To the extent that Erujin's complaint rests upon the proposition that the 'actual material' not considered by the Minister comprised those attachments to the CEO's report that were not provided to the Minister, I make the following observations.

154 First, by the time of the appeal the advertisement of Erujin's clearing permit application, the Preliminary Assessment Report and the refusal letter were of no or very limited relevance. The contents of the Preliminary Assessment Report were included in the Clearing Decision Report.

155 Second, I accept the respondents' submission that Mr McKellar's submissions in response to the Preliminary Assessment Report were overtaken by his submissions on appeal.

156 Third, the Clearing Permit Guide and the Cockatoo Recovery Plan contain information possessed by the Department that is to be treated as the Minister's own knowledge in accordance with the observations of observations of Brennan J in Peko-Wallsend, to the effect that the collective knowledge, experience and expertise of those who serve the Crown and the Minister's department are to be treated as the Minister's own knowledge and expertise.

157 Fourth, the relevant content of the emails between Ms Crawford and Mr Utber had been summarised in the material provided to the Minister and there was no necessity to provide the Minister with copies of the communications.

158 Erujin submits that, given the imperative language in schedule 5 of the Act, there is no reason why the standard of proof of facts for the purposes of a clearing principle should be different to the standard of proof of facts required in a court or other tribunal. Erujin contends that the civil standard of proof must be met because the respondents were each obliged to exercise their powers judicially. Erujin further contends that because the restrictions imposed by the Act involve striking a balance between the private rights of a landowner and the public interest in the protection of the environment, the relevant principles are those enunciated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Erujin criticises the use by the authors of the DER reports and the respondents of phrases to the effect that the clearing would be 'at variance with clearing principles'. It argues that the use of the words 'at variance with' indicated that the respondents did not apply the correct standard of proof, that is, they had not asked the question whether the clearing would contravene or infringe one or more of the clearing principles.

159 I do not accept Erujin's submission, and my reasons are as follows.

160 First, s 109(1)(b) provides that the Appeals Convenor 'shall not be bound by the rules of evidence'. The submission that the Appeals Convenor and the Minister must apply the civil standard of proof invites the imposition of an obligation on them to abide by the rules of evidence applicable in civil litigation when the Act expressly provides that the Appeals Convenor and, by necessary implication, the Minister are not bound by the rules of evidence: see Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 [107] (Flick & Perry JJ) citing Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482, 492. If the Minister and Appeals Convenor are not bound to apply the civil standard of proof then it follows that the CEO is likewise not bound to do so.

161 Second, the authorities recognise that administrative decision-making may involve a different approach from that adopted in civil litigation. The approach to fact finding for the purposes of administrative decision-making advocated by Erujin is inconsistent with the observations about fact finding in administrative decision-making made by the majority of the High Court in Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259. In their joint judgment Brennan CJ, Toohey, McHugh and Gummow JJ said:

Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term 'balance of probabilities' played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term 'evidence' as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance (282). (footnotes omitted)

162 The decision-making in issue in Liang concerned decisions about whether applicants for refugee status had a well-founded fear of persecution if returned to their country of nationality. The decision-maker was obliged to find that there was a 'real chance of persecution' if the applicants were returned.

163 Erujin sought to distinguish the decision-making process under consideration in Liang from that required by the clearing principles on the basis that the clearing principles require findings of fact and not of a state of mind, as in Liang. I do not accept that that distinction is valid because the clearing principles require facts to be found and opinions to be formed. For example, principle (a) requires an evaluation of whether the native vegetation comprises 'biological diversity' and if so, whether the 'biological diversity' warrants the description 'high level'. Principle (h) requires an evaluation of whether the clearing of native vegetation is 'likely to have an impact on the environmental values of any adjacent or nearby conservation areas'. The principles require more than the determination of factual issues by reference to objective criteria. The principles require opinions to be formed on issues on which reasonable minds may differ and on which policy considerations may have a significant bearing.

164 Third, as the respondents submit, the principles must be considered in the context of the Act and its objects. Those objects are informed by the principles set out in s 4A of the Act, in particular, the precautionary principle. That principle provides as follows:

Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, decisions should be guided by -

(a) careful evaluation to avoid, where practicable, serious or irreversible damage to the environment; and

(b) an assessment of the risk-weighted consequence of various options.

165 The language used in expressing how the precautionary principle is to apply to decisions made under the Act - in particular, that decisions are to be guided by an assessment of the risk-weighted consequences of various options - is inconsistent with the application of the civil standard of proof. Making decisions guided by an assessment of risk-weighted options is a process of decision-making that is different from making decisions on the balance of probabilities.

166 As to the use of the expression 'at variance with' in the context of the decisions about the clearing principles, as the respondents point out in their submissions, this expression appears in s 51H(3)(a) and 51O(3) and I do not accept that the use of the expression by the respondents is indicative of error.

167 Provisions that free a decision-maker from the rules of evidence are best regarded as facultative: they provide procedural flexibility but do not displace logic or reason. The litmus test is whether material considered by a decision-maker is rationally probative: Judicial Review of Administrative Action, op cit [8.360]. Erujin did not contend that there was no evidence to support the decisions challenged by it nor that the decisions were legally unreasonable in any of the ways referred to by McLure P in Jacob v Save Belliar Wetlands Inc [ 2016] WASCA 126 [63] ff.

168 These grounds give rise to a 'Project Blue Sky issue', that is, in the absence of an express provision, whether the legislative intent is that invalidity should result from the failure to comply with an express or implied statutory condition: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 389. In Project Blue Sky the majority, McHugh, Gummow, Kirby and Hayne JJ stated:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgement. The cases show various factors that have proved decisive in various contacts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue [91]. (citations omitted)

169 Although in dissent, Brennan CJ made observations to a similar effect at [41].

170 Erujin submits that, 'the clear purpose of s 51O and the clearing principles is that the grant of a permit or the refusal to grant a permit in breach of the conditions imposed by the clearing principles is to invalidate the wrongful exercise of power'. It submits that the proper application of s 51O and the clearing principles is an essential preliminary to the exercise of the power to grant or refuse a clearing permit, and that an act done in breach of such a condition is void. Erujin contends that sch 5 imposes such a condition upon the CEO when deciding to grant or refuse the permit; the Appeals Convenor in making a report to the Minister on an appeal; and the Minister in deciding an appeal.

171 Erujin supports its submission by reference to the language used in cl 1 of sch 5, 'Native vegetation should not be cleared if ...'. Erujin contended that two consequences flow from this language. First, the words 'should not be cleared if' require a positive finding of fact that the native vegetation proposed to be cleared is of the character prescribed in a clearing principle. Second, 'should not' means 'shall not' and the addition of the word 'if' means 'on condition that' the factual situation expressed in the relevant clearing principle exists. Erujin submitted that absent a positive finding of fact that the native vegetation proposed to be cleared is of the character prescribed in a clearing principle the CEO has no discretion to refuse to grant a clearing permit.

172 Erujin submits that because the grant or refusal of a clearing permit affects vested property rights, s 51E, s 51O and sch 5 of the Act should be construed by reference to the statutory presumption against an intention to interfere with vested property rights: Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409 [32] (French CJ, Gummow, Crennan & Bell JJ).

173 The respondents submit that the correct question is whether it is a purpose of the Act that a failure to comply with s 51O and the clearing principles renders a decision by the CEO invalid. In support of their submission that this question should be answered 'no', the respondents advance the following contentions.

174 First, s 51O obliges the CEO to 'have regard to the clearing principles so far as they are relevant to the matter under consideration'. This is the 'essential preliminary' imposed on the CEO.

175 Second, sch 5 regulates the exercise of the function already conferred on the CEO by s 51O rather than imposing an essential preliminary to the exercise of that function.

176 Third, the interpretation for which the respondents contend is consistent with the requirement under s 51O(4) that the 'CEO shall have regard to any planning instrument or other matter that the CEO considers relevant'.

177 Fourth, the respondents submit their interpretation is also consistent with s 51O(3) and 51H(3)(a) that provide respectively that the CEO may make a decision whether to or impose a condition on the grant of a clearing permit that is 'seriously at variance with the clearing principles' in certain circumstances.

178 Fifth, the respondents contend that considerable public inconvenience would flow from holding that a failure to apply the clearing principles invalidates a decision of the CEO because of the high volume of clearing applications and the fact that members of the public have relied upon previous decisions in relation to the grant or refusal of clearing permits. This contention was supported by a reference to the observations of the majority in Project Blue Sky at [97] to the effect that courts have always accepted that it is unlikely that it is a purpose of legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of invalidity.

179 I have concluded that a failure on the part of the CEO to interpret and apply the provisions of s 51O and sch 5 of the Act correctly does not invalidate a decision to grant or refuse a clearing permit. My reasons are as follows.

180 First, when regard is had to the language used in s 51O(2) and sch 5 and the overall context and structure of pt V of the Act the clearing principles are not of such central and fundamental importance that a failure to interpret and apply them correctly should be taken as resulting in invalidity. Neither s 51O nor sch 5 provide that an application for a clearing permit must be granted if the clearing of the native vegetation does not offend one of the clearing principles. In making a decision on a clearing matter the CEO must have regard to planning instruments and other matters that he or she considers relevant (s 51O(4)) and he or she may make a decision that is seriously at variance with the clearing principles: s 51O(3). Section 51P provides that in considering an application for a clearing permit or an application to amend a permit the CEO 'shall ensure that the clearing permit or its amendment is consistent with any approved policy'. The use of the words 'shall ensure' in s 51P is to be contrasted with the words 'have regard to' in s 51O and suggests that the legislature intended that consistency with approved policy is a consideration that ranks higher than the evaluation of the applicability of the clearing principles in the process of determining an application for a clearing permit. By referring to these matters I am not to be taken as suggesting that the clearing principles are not important matters but, seen in the context of the other provisions of pt V, they do not occupy a position of such centrality in the statutory scheme that it can be said that their proper interpretation and application is an 'essential preliminary' to the exercise of the power to grant or refuse a clearing permit.

181 Second, the principles set out in sch 5 require the CEO to make evaluations that are in part objective and in part subjective. Whilst s 51O does not contain an express direction to the CEO to take into account policy when evaluating whether the clearing of native vegetation will infringe the clearing principles, the process of evaluation will, however, involve consideration of contestable propositions influenced by policy considerations on which there is likely to be room for widely differing opinions. As the majority observed in Project Blue Sky at [95], when a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity. The significance of matters of policy in the context of the clearing principles is a matter that supports the conclusion that a failure to interpret and apply them correctly will not invalidate the exercise of the power to grant or refuse a clearing permit.

182 Third, though I consider this is a factor of lesser significance, I accept the respondents' submission that, given there are a high volume of applications for clearing permits, public inconvenience would result if a failure to apply the clearing principles invalidated a decision of the CEO.

183 It is clear that the CEO had regard to the clearing principles in so far as he considered that they were relevant to the clearing permit application. And, in light of my conclusion on the issue of invalidity, any errors made by the CEO in interpreting and applying the clearing principles did not invalidate his decision.

184 The relevant pre-conditions to the exercise of the Appeals Convenor's functions and those of the Minister are to be found in pt VII of the Act and the position that applies to the exercise of their powers may be shortly stated.

185 In the case of the Appeals Convenor the pre-conditions are: requesting the CEO to report to the Minister on the appeal: s 106(1)(b); considering and reporting to the Minister on the appeal: s 106(1)(d); consulting the CEO and the appellant: s109(1)(a); and, acting according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms or being bound by any rules of evidence: s 109(1)(b).

186 The relevant pre-conditions on the Minister's power to allow or dismiss an appeal is the receipt of the CEO's report: s 107; and receiving and having regard to the recommendations in the Appeals Convenor's report: s 109 (3).

187 The provisions of pt VII of the Act do not provide any support for the conclusion that the proper application of s 51O and the clearing principles is an essential preliminary to the exercise of the functions of either the Appeals Convenor or the Minister, or that such misinterpretation or misapplication will invalidate either the Appeals Convenor's report or his or her findings or recommendations or the Minister's decision on appeal.

188 It follows from the conclusions I have reached in relation to Erujin's grounds that its application for declarations as to the invalidity of the decisions and reports impugned by it must fail.

189 Although it is unnecessary for me to consider the merits of Erujin's detailed submissions in support of its case that the respondents made errors both in the interpretation and in the application of the clearing principles, I will state the conclusions formed by me on the errors of interpretation alleged by Erujin. But, for the reasons stated later, I will not embark on a review of the merits of the impugned decisions.

Each clearing principle is a discrete condition

190 Erujin made an overarching submission to the effect that each clearing principle is a discrete condition exclusive of the other principles. It asserted that the CEO and the Appeals Convenor erred in using a consideration or finding in respect of one principle to make a finding in respect of another principle. I do not accept this submission. As the respondents submitted, there may be circumstances where the considerations relating to one principle overlap with those relating to another. I do not accept that a matter should be excluded from consideration when evaluating one principle simply because it was relevant and taken into account in the evaluation of another principle.

Clearing principle (a) - interpretation error asserted by Erujin

191 Clearing principle (a) states '[Native vegetation should not be cleared if] it comprises a high level of biological diversity'.

192 The error in the interpretation of clearing principle (a) asserted by Erujin is that the words 'biological diversity' should be interpreted as referring only to plant diversity and not diversity of plant species and fauna which is how the CEO and Appeals Convenor interpreted the phrase. Erujin supports its argument that 'biological diversity' should be interpreted restrictively as referring only to plant diversity by pointing out that the 'it' at the commencement of clearing principle (a) is a reference to the 'native vegetation'.

193 'Biological diversity' is not defined in the Act. The term appears in the table of principles included in s 4A of the Act. Principle 3 is entitled 'The principle of the conservation of biological diversity and ecological integrity' and reads 'Conservation of biological diversity and ecological integrity should be a fundamental consideration'. The respondents draw attention to the dictionary definition of 'biodiversity'. The definition that appears in the Macquarie Concise Dictionary (5th Ed) reads as follows: 'the variety of species of plants, animals and microorganisms, their genes, and the ecosystems they comprise, often considered in relation to a particular area'. The definition of 'biology' given in the same dictionary is as follows: '1. the science of life or living matter in all its forms and phenomena, especially with reference to origin, growth, reproduction, structure, etc 2. The living organisms of a particular region: the biology of the wetlands'.

194 Having regard to the dictionary definitions of biology and biodiversity, I consider that the term 'biological diversity' as it appears in principle 3 in the Table under s 4A of the Act includes diversity of both flora and fauna. Section 4A and sch 5 were introduced into the Act by the same amending Act, number 54 of 2003, and in the absence of any contrary indication the term 'biological diversity' should be presumed to have the same meaning in sch 5 as it does in s 4A.

195 There is some force in Erujin's submission that the 'it' at the commencement of clearing principle (a) should be taken as a reference to the native vegetation. The respondents contend that the 'it' at the commencement of clearing principle (a) is a reference is to the area covered by the vegetation as well as the vegetation itself. Having concluded that whilst there is some force in Erujin's submission that the 'it' refers to the native vegetation having regard to the context and object of the Act, I consider that the interpretation for which Erujin contends is unduly restrictive.

Clearing principle (b) - interpretation error asserted by Erujin

196 Clearing principle (b) states: '[Native vegetation should not be cleared if] it comprises the whole or part of, or is necessary for the maintenance of, a significant habitat for fauna indigenous to Western Australia'.

197 The error in the interpretation of clearing principle (b) asserted by Erujin is that the CEO and the Appeals Convenor failed to interpret the principle as requiring two findings of fact before the condition specified in the principle could be established. The two findings of fact are: that native vegetation is 'necessary for the maintenance of a significant habitat' and that the native vegetation 'in whole or part comprises a significant habitat'. Erujin contended that it was implicit in principle (b) that a finding had to be made that the relevant native vegetation cannot be done without as a habitat for a species of fauna. It contended that proof of the principle required proof that if habitat significant for a species - the native vegetation to be cleared - were lost the species would be more vulnerable to extinction.

198 I do not accept Erujin's submissions. It is apparent from its express terms that the clearing principle contains alternatives - I do not accept that the 'or' should be read otherwise than disjunctively. The native vegetation may either comprise the whole or part of a significant habitat for fauna or it may be necessary for the maintenance of a significant habitat for fauna. Further, there is no textual or other warrant for implying into clearing principle (b) a requirement that the vegetation to be cleared 'cannot be done without as a habitat for a species of fauna' or for requiring proof that if the native vegetation significant for a species were cleared the species would be more vulnerable to extinction.

Clearing principle (h) - interpretation error asserted by Erujin

199 Clearing principle (h) states: '[Native vegetation should not be cleared if] the clearing of the vegetation is likely to have an impact on the environmental values of any adjacent or nearby conservation area'.

200 The error in the interpretation of clearing principle (h) asserted by Erujin is that the CEO and the Appeals Convenor failed to determine whether the clearing of the vegetation is likely to have an impact on the environmental values of any adjacent or nearby conservation areas by reference to the balance of probabilities and the Briginshaw principles. Erujin contended that the reasoning of the CEO and the Appeals Convenor involved no more than the expression of unproven opinions that would not be admissible in civil litigation. It argued that the opinions expressed by Dr Mattiske were scientifically based and would be admissible in civil litigation and should thus be preferred by the court over the reasoning of the CEO and the Appeals Convenor. For the reasons given at [160] - [169] the CEO and the Appeals Convenor were not required to make findings on the balance of probabilities and were not obliged to observe the rules of evidence.

201 Erujin made detailed submissions in support of its application for a declaration that it is entitled to be granted the clearing permit for which it had applied. This aspect of Erujin's case invited a review that would require the court to consider the materials and policies and to make evaluations about whether the clearing principles would be infringed by the clearing and whether the clearing permit that might be granted is consistent with approved policies. The court is not qualified to engage in such a review. Further, to embark on a review of this nature would infringe the principle of judicial restraint in the review of administrative decisions: PekoWallsend [142] - [147].

202 For the reasons given above, I dismiss Erujin's applications and will hear the parties as to costs.