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 black-cockatoo feeding was recorded and individuals were observed near the application area and numerous calls consistent with Carnaby's cockatoo were heard. Two potential nest hollows 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 hollows 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, provided adequate nearby food and/or water resources are available or are re-established; and
• In the non-breeding season the vegetation that 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 metres of a major watercourse, 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 these 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 hectares) and protected areas create the most direct link between core habitat areas. Zone B cells were identified as having large areas (greater than 30 hectares) of woody vegetation and protected areas providing habitat linkages, but which did 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.

The CEO Assessment Report of 16 January 2014 including the Clearing Permit Assessment Report

1. In the CEO Assessment Report of 16 January 2014, to which was attached the Clearing Permit Assessment Report, the CEO refused the appellant's application for a clearing permit. The CEO stated:

After finding the proposal to be at variance to a number of the clearing principles, I have decided to refuse the application. The reasons for my decision are further explained in the attached decision report.

1. In particular, the CEO found that the proposed clearing '[was] at variance to' Clearing Principles (a), (b) and (e) and 'may be at variance to' Clearing Principle (h).
2. As to Clearing Principle (a), the Clearing Permit Assessment Report referred to Dr Mattiske's report of July 2013. The Clearing Permit Assessment Report stated:

The application is to clear up to 13 hectares of native vegetation for the purposes of pasture, grazing and increasing the catchment of an existing dam.

The local area (10 kilometre radius) surrounding the application area retains approximately 20 percent vegetation. The mapped Beard vegetation type and IBRA bioregion retain above the recommended level of 30 percent (Government of Western Australia, 2013), however as the local area retains below this level the application falls within a highly cleared landscape.

...

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.

1. As to Clearing Principle (b), the Clearing Permit Assessment Report referred again to Dr Mattiske's report of July 2013 and the Carnaby's cockatoo recovery plan (December, 2012). The Clearing Permit Assessment Report concluded that, as the application area formed significant habitat for the forest red-tailed black cockatoo, Baudin's cockatoo and Carnaby's cockatoo, and may form significant habitat for the dispersal of the western ringtail possum, and had been classified as regionally significant for the movement of endemic fauna, the application was at variance to Clearing Principle (b).
2. As to Clearing Principle (e), the Clearing Permit Assessment Report repeated that the application area formed significant habitat for the forest red-tailed black cockatoo, Baudin's cockatoo and Carnaby's cockatoo, and may form significant habitat for the dispersal of the western ringtail possum, and had been classified as regionally significant for the movement of endemic fauna. The Clearing Permit Assessment Report concluded that, in those circumstances, the application area was 'a significant remnant within a highly cleared landscape' and consequently the proposed clearing was at variance to Clearing Principle (e).
3. As to Clearing Principle (h), the Clearing Permit Assessment Report reads:

Three nature reserves are located within the local area (10 kilometre radius). Mt Mason and Bakers Junction nature reserve are located 2.7 kilometres south and 4.5 kilometres north west respectively and Two Peoples Bay nature reserve is located 8 kilometres east.

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.

As the vegetation under application is likely to be significant for the movement of fauna through the landscape it may form a linkage for genetic dispersal between the reserves to the south and north of the application area. The removal of which may impact on their long term environmental value.

Given the above, the clearing as proposed may be at variance to this principle.

The appellant's letter dated 6 February 2014 in support of its appeal to the Minister

1. The appellant's letter dated 6 February 2014 in support of its appeal to the Minister reproduced, to a significant extent, submissions contained in the appellant's response of 5 December 2013 to the Preliminary Assessment Report.
2. The appellant asserted in its letter dated 6 February 2014 that the CEO had 'erred in his reasoning and therefore erred in making a decision to refuse the application' for a clearing permit.
3. The appellant argued that the clearing proposal was not at variance with any of Clearing Principles (a), (b), (e) and (h). The argument was based upon the appellant's contentions as to the proper interpretation of those principles. The letter advanced detailed reasons in relation to each principle as to why the proper interpretation of the principle was different from that allegedly adopted by the CEO. On the appellant's contentions as to the proper interpretation of each of the principles, the clearing proposal was not in breach of or at variance with any of the principles. The appellant's very limited references to Dr Mattiske's report were made in the context of secondary, alternative arguments.
4. The letter concluded with the following summary of the appellant's case:

The [CEO] refused the approval to the application because it was allegedly 'at variance' with a number of principles. Properly understood however, the proposed clearing is not at variance with any of the 10 principles outlined in Schedule 5 of the Act at all.

The following further criticisms can also be levelled at the [CEO's] decision making process.

1. Totally irrelevant matters were taken into account, such as expired and unexecuted planning approvals. One has to seriously wonder how a now defunct exercise of discretion by the Planning Commission that was never put to effect would have anything at all to do with anything. Moreover, that now defunct exercise of discretion appears to the undersigned to have contained planning law error (in that the requirement to fence off vegetated areas was beyond power [in that it lacked nexus with the fact of subdivision in contravention to the second test for validity of a planning condition see Newbury District Council v Secretary of State for the Environment (1981) AC 578]).
2. Relevant matters such as aspects of historical farming land uses, resultant degradation, the current condition of the vegetation, spatial extent, fragmentation and the commercial interests of the Appellant have not been considered at all. The Mattiske Report provided with the application has indicated that the proposed areas under consideration are degraded and that the biodiversity values are low in a local and regional context. It is plain that none of those supporting factors have been taken into account at all.
3. Reliance has been placed on cursory studies and a broader overview such as the one undertaken on the subject property by the Department in formulating the [CEO Assessment Report]. One of the difficulties associated with taking such a broad approach by government agencies when required to exercise a discretion whether to approve or refuse to approve an application is that it gives rise to a neglect of both a [statutory] duty to consider all relevant matters and the duty of care to the Applicant (including the duty to have regard to the Applicant's commercial interests). Misapplication of the clearing [principles] and a failure to properly and fully consider such aspects as the condition of the areas or the historical land use of the areas is quite evident in this case. Similar neglect in considering all aspects involved in assessment of clearing applications has resulted in a range of inconsistencies in the local and regional area near Albany and gives rise to inappropriate planning decisions and previous clearing refusals (where approvals should have been given) and approvals (where refusals should have been given). In this case, only superficial and short visits have been undertaken in examination of the case by agency employees: whereas the Mattiske team members have undertaken extensive work over several years and engaged a range of expert specialist zoologists so as to establish the true environmental values of the vegetation proposed to be cleared values on the ground.

Moreover, there are good reasons to support the proposal which may be stated as follows:

1. there are several habitat trees and these are being avoided in that they are not the subject of the application ... 2. the area has been disturbed for a long period due to agriculture and grazing activities.

1. the application area proposed to be cleared is insignificant in the local, regional and national context.

1. the delineation of the proposed area to be cleared has also taken into consideration the movement of the western ringtail possum through the area and some areas have been avoided to assist in such movement. 2. given that there are, within the proposed clearing area, identified native vegetation assets that may [be] of benefit to limited classes of fauna, the Applicant would be more than willing to accept the imposition of a reasonable condition requiring the preservation of: 1. the agonis (for possum habitat); and 2. roosting trees (for cockatoos)

as has been specifically identified by Dr Mattiske in her report.

1. The DER s 106 Report dated 4 March 2014 was transmitted to the Minister on 5 March 2014.
2. In the DER s 106 Report, the CEO identified four grounds of appeal relied upon by the appellant, namely:

(a) ground 1: the assessment against Clearing Principle (a) was incorrect as it included fauna within its assessment of biodiversity;

(b) ground 2: the application area did not constitute significant fauna habitat;

(c) ground 3: the application area was not a significant remnant within an extensively cleared landscape; and

(d) ground 4: the assessment against Clearing Principle (h) was inconsistent with the assessment undertaken in relation to a previous application.

1. The CEO addressed each of the grounds he had identified and recommended, in each case, that the ground be dismissed.

Consultation between the Appeals Convenor's Office and the appellant and others

1. The Appeals Convenor's Office consulted with the appellant and others in the course of the preparation of the Appeals Convenor's Report.
2. On 1 April 2014, there was a meeting between Robert Armstrong (a director of the appellant), Mr McKellar, Dr Mattiske and another person representing the appellant, on the one hand, and Jean-Pierre Clement, the Deputy Appeals Convenor, and Golnar Nabizadeh on behalf of the Appeals Convenor's Office, on the other.
3. On 3 and 10 April 2014, Ms Nabizadeh spoke to Ron Johnstone of the Western Australian Museum about the significance of the land proposed to be cleared as a habitat for cockatoos. It appears that on 10 April 2014 Mr Johnstone repeated advice obtained by him previously from Tony Kirkby, an expert on cockatoos.
4. On 10 April 2014, Ms Nabizadeh drafted an email to Mr McKellar (to which Mr Clement made some amendments) which referred to Mr Johnstone's advice and sought additional comment from Mr McKellar. The draft email was referred to the Appeals Convenor for comment, but was not sent to Mr McKellar or any other representative of the appellant.
5. On 15 April 2014, Ms Nabizadeh met with Ken Atkins, of the Department of Parks and Wildlife. They discussed the significance of the land proposed to be cleared as habitat for the western ringtailed possum including, in particular, the impact that the clearing of peppermint trees would have on that habitat. Before the meeting, Ms Nabizadeh arranged for Dr Atkins to be given a copy of the Clearing Permit Decision Report. He was not, however, provided with any other documents; for example, the documents relied on by the appellant in support of its application.
6. On 17 April 2014, Ms Nabizadeh sent an email to Mr McKellar, which read:

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. (emphasis added)

1. Mr McKellar responded to Ms Nabizadeh by an email of 28 April 2014. His response included a comment about the DER's conclusion that the vegetation formed part of a corridor through which the threatened species moved and therefore constituted significant habitat for the purposes of Clearing Principle (b). Mr McKellar asserted that:

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

1. On 6 May 2014, Mr McKellar sent an email to Ms Nabizadeh. The email attached a letter from Dr Mattiske which contained further information and submissions on behalf of the appellant.

The Appeals Convenor's Report of 21 May 2014 to the Minister

1. The Appeals Convenor's Report of 21 May 2014 to the Minister was accompanied by a document headed 'Appeal Summary Sheet' which stated:

Background

This report relates to an appeal lodged by Erujin Pty Ltd in objection to the refusal of the Department of Environment Regulation (DER) to grant clearing permit CPS 5738/1 (clearing permit). Erujin Ply Ltd applied to clear up to 13 hectares (ha) of native vegetation on Lot 50 Kalgan Road, City of Albany, for the purposes of pasture and dam expansion.

Grounds of appeal

The applicant submitted that the DER erred in its decision to refuse the clearing permit, specifically with regard to its assessment of clearing principles (a) high level of biological diversity; (b) significant habitat for fauna indigenous to Western Australia; (e) significant as a remnant of native vegetation in an extensively cleared landscape, and (h) adjacent or nearby conservation areas.

Appeal findings

• The DER assessed the proposed clearing against the clearing principles and found that the clearing is at variance to principles (a), (b), (e), and may be at variance to clearing principle (h), listed in Schedule 6 of the EP Act.
• The DER noted that the application area falls within strategic zone B of the Western Australian South Coast Macro Corridor Network where zone B cells were identified as having large areas (greater than 30 ha) of woody vegetation and protected areas providing habitat linkages to two confirmed areas of western ringtail possum habitat within the property.
• Advice received from WA Museum at officer level confirmed the DER's advice regarding the environmental values of the site under appeal.
• Advice received from the Department of Parks and Wildlife at officer level noted that given the decrease in western ringtail possum populations in other parts of the South West, such as Manjimup and Dunsborough/Busselton, western ringtail possum populations in and around Albany may play an increasingly critical role in the survival of the species.
• The application area falls within a highly cleared landscape, and contains vegetation that may be of significance for four listed fauna species, including Carnaby's cockatoo, Baudin's cockatoo, red-tailed forest cockatoo, and western ringtail possum.

1. The Appeals Convenor's Report outlined under headings a number of relevant matters, including the position adopted by the CEO in the CEO Assessment Report and the grounds on which the appellant submitted in its letter dated 6 February 2014 that the Minister should overturn the CEO's decision to refuse the application for a clearing permit.
2. The grounds of appeal were summarised in the Appeals Convenor's Report as follows:

The [appellant] submitted that the [CEO] erred in [his] decision to refuse the clearing permit, specifically with regard to [his] assessment of clearing principles (a), (b), (e) and (h). The [appellant] was concerned that the [CEO's] assessment of clearing principle (a) incorrectly included fauna within the assessment of biodiversity; that the application area does not constitute significant habitat for fauna under clearing principle (b); that the application area does not constitute a significant remnant within an extensively cleared landscape under clearing principle (e); and that the [CEO's] assessment of the current application is inconsistent with [his] assessment of a prior application with regard to the impact of the clearing on nearby conservation areas [under clearing principle] (h).

The [appellant] contended that the [CEO's] interpretation of these clearing principles was incorrect, and led to an erroneous decision to refuse the clearing permit.

1. The Appeals Convenor's Report stated under the heading 'Consideration':

In considering a clearing matter, section 51O of [the Act] requires the Chief Executive Officer (CEO) of the DER to have regard to the clearing principles and to any planning instrument, or other matters that the CEO considers relevant.

With respect to the clearing principles, the DER assessed the proposed clearing against the clearing principles and found that the clearing is at variance to principles (a), (b), (e), and may be at variance to clearing principle (h) (Appendix 1).

Advice received from the WA Museum at officer level confirmed the DER's advice regarding the environmental values of the site under appeal. Specifically, the WA Museum confirmed that two black cockatoo nest sites were identified on the [appellant's] property, and that given the extent of clearing in the local area the native vegetation under application is likely to be significant habitat. It was also observed that the values of the native vegetation to cockatoo species was present despite the absence of understorey vegetation.

The DER also noted that the Environmental Protection Authority's (EPA) Environmental Protection of Native Vegetation in Western Australia Position Statement No. 2 (PS2) contains guidelines for the protection of native vegetation within the 'agricultural area'. The application area falls within this zone. Specifically, PS2 states that 'any further reduction in native vegetation through clearing for agriculture cannot be supported' in the agricultural area and that '[a]ll existing remnant native vegetation should be actively managed by landholders and managers so as to maintain environmental values' ('Clearing of Native Vegetation, with particular reference to the Agricultural Area' (Position Statement No. 2) (Environmental Protection Authority, 2000) pp. 7-8).

Officer level advice from [the Department of Parks and Wildlife (DPaW)] confirmed the DER's advice regarding the significance of the application area for [Western ringtail possum (WRP)] populations. DPaW advised that WRP communities take time to move between woodland areas, particularly for female WRP, who travel more slowly than male WRP. It is noted that DPaW officers observed that large distances between suitable habitats may threaten WRP communities, and also increases the risk of predation from other species. More generally, DPaW officers noted that given the decrease in WRP populations in other parts of the South West, such as Manjimup and Dunsborough/Busselton, the WRP population in and around Albany may play an increasingly critical role in the survival of the species.

The applicant also submitted that around 34 percent of native vegetation remains in the ARVS bioregion, and that the current clearing application should be considered in this bioregional context. It is noted that the Commonwealth National Objectives and Targets for Biodiversity Conservation 2001-2005 (2001) recognises that the retention of 30 per cent or more of the pre-clearing extent of each ecological community is necessary if Australia's biological diversity is to be protected. It is also noted that this is the threshold level, below which species loss appears to accelerate exponentially ('Clearing of Native Vegetation, with particular reference to the Agricultural Area' (Position Statement No. 2) (Environmental Protection Authority, 2000) pp. 8-9). As noted by the DER, the level of 30 per cent representation within a bioregion does not consider the effect of habitat fragmentation and isolation.

Given the above, it is considered that the native vegetation proposed to be cleared forms part of a significant habitat for listed fauna species. As such, it is considered the DER was justified in refusing to grant the clearing permit.

1. The Appeals Convenor's conclusion and recommendation, as set out in the Appeals Convenor's Report, reads:

Having regard to the issues raised in the appeal, the purpose of the proposed clearing, the advice from the DER, the WA Museum and DPaW, and the information obtained in discussion with the applicant, it is considered that the native vegetation the subject of this appeal possesses important roosting, nesting and foraging values for Carnaby's cockatoo, and habitat values for WRP.

As remnant vegetation, it is considered that the application area is significant as WRP habitat, and particularly the ability of the local population to move to other vegetation patches on the site. It is therefore considered that removing this remnant may adversely affect the ability of WRP to survive in this area.

Having regard to the foregoing, it is considered that the DER was justified in its decision to refuse the clearing permit. It is therefore recommended that the appeal be dismissed.

1. The Appeals Convenor's Report was provided to the Minister. A copy was not given to the appellant.

1. The primary judge found that 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' [56]. His Honour elaborated:

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;

(3) the Appeals Convenor's [Report];

(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);

(5) a covering letter; and

(6) a draft of a letter from the Minister to Erujin advising that the appeal had been dismissed [56].

1. His Honour reiterated in effect, at [150] of his reasons, that the Minister's package included the appellant's original application for the clearing permit, Dr Mattiske's report of July 2013 and the appellant's letter dated 6 February 2014 in support of its appeal to the Minister.

The Minister's letter dated 3 June 2014 dismissing the appeal

1. In his letter dated 3 June 2014, dismissing the appeal, the Minister stated, relevantly:

The issues raised in objection to the DER's decision are addressed in the Appeals Convenor's report. I understand that you questioned the DER's reasoning regarding its assessment of your application in relation to the clearing principles listed in Schedule 5 of the Act.

Specifically, the DER assessment of your application concluded that the clearing of this area would be, or may be, at variance to four out of the ten clearing principles. In the view of the DER, the area proposed to be cleared contains significant habitat for three black cockatoo species and western ringtail possum, particularly given that the surrounding area is highly cleared.

The DER also noted advice from the Department of Parks and Wildlife that the clearing may lead to a reduction in connectivity in the coastal macro corridor.

I also note the Appeals Convenor's report which outlines that the native vegetation proposed to be cleared appears to be part of significant habitat for fauna, including for listed species, and is likely to be a corridor for western ringtail possum.

In considering your appeal, I am required to take into account the environmental issues raised by the proposed clearing. In this case, while I acknowledge the vegetation proposed to be cleared contains limited understorey, it retains important habitat function for black cockatoos and western ringtail possum. I am therefore of the view that the DER was justified in determining not to grant the permit. It follows that I have dismissed your appeal.

Some general observations in relation to both Appeal CACV 23 of 2017 and Appeal CACV 24 of 2017

1. The actions of the Appeals Convenor and the Minister must, in general, be evaluated in the context of the appellant's case in its appeal to the Minister; in particular, its grounds of appeal and its submissions against the CEO's refusal of the clearing permit application.
2. It is a feature of the appellant's amended case in each of the appeals to this court that the appellant has endeavoured in some respects to advance a case before this court that is materially different from the case it ran in the appeal to the Minister.

Appeal CACV 23 of 2017: the grounds of appeal

1. Appeal CACV 23 of 2017 relates to the appellant's application for judicial review (CIV 2875 of 2015) in the General Division of the Supreme Court.
2. The appellant relies on two grounds of appeal.
3. Ground 1 alleges:

In ruling as not invalid the decision (the Minister's Decision) by the First Respondent (the Minister) under s 107(2) of the Environmental Protection Act 1986 (EP Act) to dismiss an appeal (the Appeal) by the Appellant (Erujin) from a refusal pursuant to s 51E(5)(b) by the CEO of [Erujin's] application under s 51E(1) for a permit to clear native vegetation (the Application), the learned trial Judge erred in law by failing to rule that each of the following, alternatively some or all of the following collectively, invalidated the Minister's Decision for lack of compliance with the EP Act:

1.1 The Appeals Convenor's and the Minister's acceptance that the proper interpretation [of] Clearing Principle (a), for the purposes of s 51O(2) - (3) and clause 1 of Schedule 5 of the EP Act (the Clearing Principles) is that 'biological diversity' includes fauna.

1.2 The Appeals Convenor's and the Minister's acceptance that the proper interpretation [of] Clearing Principle (e), for the purposes of s 51O(2) - (3) and clause 1 of Schedule 5 of the EP Act is that 'significant as a remnant of native vegetation' includes fauna considerations.

1.3 The Minister's reliance on a report prepared pursuant to s 106(l)(d) EP Act by the Appeals Convenor, which report was not compliant with the EP Act because:

1.3.1 [The] Appeals Convenor's report omitted an appraisal or summary of, and a copy of, the report of Dr Mattiske, which report formed part of the exercise of the appellant's statutory right to appeal, in circumstances that:

(a) Dr Mattiske's investigation for her evidence and report constituted only expert investigation of matters and the principal expert opinion on matters relevant to the Application; and

(b) Dr Mattiske's report included the following relevant to Clearing Principles (a), (b), (e) and (h);

(i) Of the 13.24 ha within the Application area, only 0.06 ha was 'good' and the rest 'degraded' and that 'good' is below middle-order condition, surpassed by 'pristine', 'excellent' and 'very good', and only 0.003% of remaining 'vegetation Unit 10' are to be cleared;

(ii) The Application was unlikely to be at variance with Clearing Principle (a), for reasons she gave;

(iii) No tree hollows suitable for cockatoo nesting were affected by the Application;

(iv) The clearing proposed by the Application is likely to have minimal impacts on the biological values in the area;

(v) The Application was unlikely to be at variance with Clearing Principle (b), for reasons she gave;

(vi) The Application was unlikely to be at variance with Clearing Principle (e), for reasons she gave; and

(vii) The Application was unlikely to be at variance with Clearing Principle (h), for reasons she gave.

1.3.2 [T]he Appeals Convenor's report, in reporting to the Minister that the Application was at variance with Clearing Principles (a), (b) and (e), omitted reporting the matters in paragraph (b)(i) above, and instead reported that 'The DER specifically found that the vegetation is in degraded to good condition'.

1.3.3 Where Dr Mattiske's report or the Appeal grounds addressed issues, the Appeals Convenor's report failed to include findings of fact and opinion on those issues independently of the findings made by the CEO and the Department (DER) of which the CEO is chief executive officer, but instead:

(a) adopted, without assessment, DER's views that the Application was at variance with each of Clearing Principles (a), (b), (e) and may be at variance with Clearing Principle (h);

(b) adopted, without assessment, DER's opinion on the interpretation of Clearing Principle (a);

(c) as to Clearing Principle (a), deferred to DER assessments of remaining vegetation; significance of the presence of cockatoos and a macro corridor; and the presence of a critical habitat for (unnamed) fauna.

(d) As to Clearing Principle (b), deferred to DER's assessments that the Application was at variance with Clearing Principle (b) in that certain fauna species had been recorded within 10 km of the Application area and formed a 'significant' habitat for them and other species; and the Application area formed part of a regionally significant ecological linkage.

(e) As to Clearing Principle (e), deferred to DER views that the Application area was 'significant as a remnant of native vegetation';

(f) As to Clearing Principle (h), deferred to DER views that 10 km was an appropriate quantification of 'adjacent or nearby'.

1. Ground 2 alleges that the primary judge erred in law by ruling, at [156] of his Honour's reasons, that the Minister is deemed to have known the information possessed by officers of the Minister's Department, and, also, erred in law by relying on that ruling to reject the appellant's case that the Minister was not informed of certain matters by the Appeals Convenor as set out in ground 1.3.

Appeal CACV 23 of 2017: the merits of the grounds of appeal

1. Grounds of appeal 1.1 and 1.2 allege, in essence, that the Minister's decision on the appeal was invalid because the Appeals Convenor and the Minister misconstrued Clearing Principles (a) and (e).
2. In particular, the appellant asserts that the Appeals Convenor and the Minister misconstrued the expression 'biological diversity' in Clearing Principle (a) and the phrase 'significant as a remnant of native vegetation' in Clearing Principle (e) in that they interpreted those words to include fauna.
3. We are of the opinion, for the following reasons, that there is no merit in ground 1.1 or ground 1.2.
4. First, on a fair reading of the Appeals Convenor's Report and the Minister's letter dated 3 June 2014 as a whole, neither the Appeals Convenor nor the Minister construed Clearing Principle (a) or Clearing Principle (e). The Appeals Convenor's Report and the Minister's letter referred to the appellant's arguments with respect to the proper construction of the Clearing Principles but, without resolving those arguments, concluded that the proposed clearing should not be permitted because of the impact which clearing would have upon Carnaby's cockatoo and the western ringtail possum.
5. Secondly, the structure of the Appeals Convenor's Report was as follows. Initially, the report set out an introduction, background and other general matters. Next, the report addressed each of the grounds of appeal by reference to each relevant Clearing Principle. The appellant's arguments and the CEO's responses were then summarised under headings relating to each of the relevant Clearing Principles. However, no findings were made as to the proper construction of those principles. Next, under the heading 'Consideration', the report contained a discussion and an expression of opinions as to the information relied upon and the submissions made by each of the appellant and the CEO, and recorded other information obtained by the Appeals Convenor's Office. Finally, the report set out in a section headed 'Conclusion and Recommendation' the Appeals Convenor's views.
6. Thirdly, the Appeals Convenor examined the merits of the proposed clearing as a whole and arrived at her recommendation and conclusion (in particular, that the vegetation should not be cleared because of the impact that clearance would have on fauna) without stating which Clearing Principle was relied upon, or that any specific Clearing Principle was relied upon as the ground or primary ground for her recommendation and conclusion.
7. Fourthly, the Appeals Convenor did not, by summarising the CEO's responses in the Appeals Convenor's Report, thereby adopt those responses as her own. The Appeals Convenor's views were set out in the section headed 'Conclusion and Recommendation'.
8. Fifthly, the Minister, in his letter dated 3 June 2014, evaluated the merits of the proposed clearing and concluded that, although the vegetation proposed to be cleared contained limited understorey, it retained important habitat features for black cockatoos and the western ringtail possum and, accordingly, the decision not to grant the clearing permit was justified. The Minister reached that conclusion without stating which Clearing Principle he relied upon, or that any specific Clearing Principle was relied upon as the ground or primary ground for the decision.
9. Sixthly, in circumstances where the Appeals Convenor's Report did not construe the relevant Clearing Principles and did not resolve the arguments as to construction referred to in the appellant's submissions, but instead examined the merits of the proposed clearing as a whole, it necessarily follows that the Appeals Convenor's Report did not result in any misconstruction by the Minister of the expression 'biological diversity' in Clearing Principle (a) or the phrase 'significant as a remnant of native vegetation' in Clearing Principle (e).
10. Seventhly, there is no doubt that fauna is a relevant factor to be taken into account under the Clearing Principles as a whole. It is expressly referred to in Clearing Principle (b), which provides that 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. The Appeals Convenor considered all of the issues in dispute as a whole and, accordingly, fauna was not an irrelevant consideration. The Minister did not make his decision, as recorded in his letter dated 3 June 2014, on the basis of any individual Clearing Principle. The decision was based on the conclusion we have outlined at [86] above.
11. Eighthly, the Act does not contain any provision which requires the grant of a clearing permit if the Clearing Principles are not infringed. Nor does the scheme of the Act indicate the existence of any such requirement. Rather, to the contrary, the Act confers a broad discretionary power to grant or refuse a clearing permit, subject to s 51O and s 51P. The appellant's submission that if no Clearing Principle is infringed, a permit must be granted, has no foothold in the text or scheme of the Act.
12. Ninthly, the approach of the Appeals Convenor in the Appeals Convenor's Report was consistent with s 109(1)(b) of the Act, as applied by s 107B(1) of the Act; namely, that in considering an appeal the Appeals Convenor 'shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms'. The Appeals Convenor was entitled to address the substantial merits of the appeal rather than approach the appeal by examining and applying each relevant Clearing Principle on a separate and discrete basis. There is some overlap between some of the Clearing Principles. Also, there was no material disagreement between the Appeals Convenor and Dr Mattiske as to the underlying facts. Rather, the material disagreement was as to the conclusions to be drawn from those facts.
13. The primary judge decided that even if the Appeals Convenor or the Minister had misconstrued the Clearing Principles, as alleged by the appellant, the misconstruction would not have invalidated the Minister's decision on the appeal. His Honour explained:

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.

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.

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.

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 [179] - [182]. (original emphasis)

1. In its appeal to this court, the appellant asserts that a wrong interpretation of the Clearing Principles by the Appeals Convenor or the Minister will result in the invalidity of the Minister's decision on the appeal. Our conclusion that neither the Appeals Convenor nor the Minister construed Clearing Principle (a) or Clearing Principle (e) makes it unnecessary to consider this aspect of the appellant's case. However, as the matter was fully argued, we will express our opinion on it.
2. We are satisfied that the primary judge was correct, generally for the reasons he gave, to conclude that a misconstruction of the Clearing Principles would not result in the invalidity of the Minister's decision. We merely note the following.
3. First, it is apparent, on a proper construction of the Act as a whole, that the Clearing Principles are not of fundamental importance so as to require the conclusion that a failure properly to construe and apply them should be taken to result in invalidity. Section 51O(3) contemplates that, in the circumstances specified in the provision, an application for a clearing permit may be granted even though the grant would be seriously at variance with the Clearing Principles. Also, as we have mentioned, the Act does not contain any provision which requires the grant of a clearing permit if the Clearing Principles are not infringed. Further, although s 51O(2) requires that the CEO shall have regard to the Clearing Principles, so far as they are relevant, in considering a clearing matter, the provision does not oblige the CEO to ensure that the clearing permit is consistent with the Clearing Principles. Compare s 51P, which requires the CEO to ensure that a clearing permit, or its amendment, is consistent with any approved policy.
4. Secondly, the application of the Clearing Principles, properly construed, requires evaluations that are partly objective and partly subjective and, also, the assessment of issues that are influenced by policy. There is room for different and legitimate views among reasonable people on those issues.
5. Thirdly, the provisions of the Act with respect to clearing permits are only part of the legislative scheme with respect to the clearing of native vegetation. Section 51C creates an offence where a person, relevantly, causes or allows clearing, unless the clearing is done in accordance with a clearing permit or is of a kind set out in sch 6. The provisions of sch 6 specify clearing for which a clearing permit is not required. Accordingly, the legislative scheme involves, in effect, a general prohibition against the clearing of native vegetation, subject to certain exemptions. The provisions with respect to clearing permits are one of the exemptions.
6. Fourthly, there is no merit in the appellant's assertion of the possibility of a 'cavalier disregard' of the Clearing Principles if a misconstruction of the Clearing Principles does not result in invalidity. Section 51O(2) of the Act expressly requires the CEO to have regard to the Clearing Principles. The appellant does not assert that, in the present case, there was a 'cavalier disregard'. It is unnecessary to decide whether a deliberate breach of the statutory provision would result in invalidity. We merely note that a breach of that kind may give rise to other remedies. A misconstruction in good faith in the present case would not result in invalidity.
7. The appellant made submissions as to the proper construction of Clearing Principle (a) and Clearing Principle (e). In the proceedings before the primary judge, whether 'biological diversity' within Clearing Principle (a) is confined to 'plant biodiversity' and does not extend to fauna was in issue. However, whether fauna was a relevant consideration under Clearing Principle (e) was not in issue, but is now sought to be raised in the appeal to this court.
8. Our conclusions that:

(a) neither the Appeals Convenor nor the Minister construed Clearing Principle (a) or Clearing Principle (e); and

(b) in any event, any misconstruction of the Clearing Principles would not result in the invalidity of the Minister's decision,

makes it unnecessary to consider the proper construction of Clearing Principle (a) or Clearing Principle (e).

1. However, we note in relation to Clearing Principle (a) that, in our opinion, the trial judge was correct, generally for the reasons he gave, to decide that the term 'biological diversity' in Clearing Principle (a) includes diversity of both flora and fauna. See his Honour's reasons at [191] - [195]. We merely add:

(a) the better view is that the word 'comprises' in Clearing Principle (a) means, in context, 'contains';

(b) if, as we think is the case, 'it comprises' in Clearing Principle (a) means 'it contains', then 'biological diversity', within Clearing Principle (a), includes fauna as well as flora;

(c) his Honour's conclusion is consistent with the definition of 'environment' in s 3(1) of the Act, which means, amongst other things, 'living things'; and

(d) his Honour's conclusion promotes the express objects in s 4A of the Act, in particular, the protection of the environment and the conservation of biological diversity (which section 4A states 'should be a fundamental consideration').

1. Counsel for the respondents conceded (properly in our opinion) that if the question whether fauna was a relevant consideration under Clearing Principle (e) had been raised before the primary judge then the respondents would not have adduced additional evidence. However, that circumstance is not sufficient, of itself, to justify this court permitting the appellant to raise the issue. We are satisfied that it is not expedient or in the interests of justice to permit the appellant to raise for the first time in the appeal to this court the question whether fauna was a relevant consideration under Clearing Principle (e). See University of Wollongong v Metwally [No 2];[3] Coulton v Holcombe;[4] Water Board v Moustakas.[5]
2. Further, the appellant's complaint that the Appeals Convenor did not assess or explain why the vegetation in question was 'significant' within Clearing Principle (e) is without merit in that her conclusion in relation to the environmental values of the relevant land are stated in the 'Summary', 'Consideration' and 'Conclusion and Recommendation' sections of her report.
3. We turn to ground 1.3.1 in which the appellant alleges, in essence, that the Minister's decision on the appeal was invalid because the Minister relied on the Appeals Convenor's Report, which did not comply with the Act in that the report omitted an appraisal or a summary of, and was not accompanied by a copy of, Dr Mattiske's report of July 2013 in the context that Dr Mattiske's report 'formed part of the exercise of the appellant's statutory right to appeal'.
4. The primary judge made an express finding that Dr Mattiske's report of July 2013 was provided to the Minister. See [56] and [150] of his Honour's reasons. Although ground 1.3.1 asserts that the Appeals Convenor's Report was not accompanied by a copy of Dr Mattiske's report, ground 1.3.1 does not expressly allege that his Honour erred in fact in finding otherwise. In any event, his Honour's finding is supported by the affidavit of Ms Nabizadeh affirmed on 29 September 2015. There is no merit in the appellant's assertion.
5. His Honour said:

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 [128].

1. No error has been established in relation to those findings. Although, by s 109(3) of the Act as applied by s 107B(1) of the Act, the Minister is obliged to have regard to the Appeals Convenor's Report, the Minister is not confined in his consideration of the appeal to that report. The Minister may also have regard to other relevant materials put before the Minister by the Appeals Convenor.
2. For those reasons, ground 1.3.1 must fail. There are, however, a number of other reasons why the ground is without merit.
3. The primary judge found that some of the attachments to the CEO Assessment Report were not provided to the Minister. The attachments in question are listed in his Honour's reasons at [147]. However, his Honour was satisfied that the attachments that were omitted did not have to be provided to the Minister. His Honour said:

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.

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.

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.

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.

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 ... 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.

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. [152] - [157]

1. In our opinion, the primary judge was correct, generally for the reasons he gave, in deciding that the omitted attachments did not have to be provided to the Minister. In any event, the appellant has not established that any of the materials that were not provided to the Minister would have materially advanced its case.
2. The scheme of the Act in relation to appeals to the Minister against the refusal of a clearing permit are, relevantly, as follows:

(a) s 109(1)(a) and s 109(1)(aa), as applied by s 107B(1), oblige the Appeals Convenor to consult with the CEO and the appellant and permit the Appeals Convenor to consult with such other persons as he or she considers necessary;

(b) s 109(1)(b), as applied by s 107B(1), provides that in considering an appeal the Appeals Convenor 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 his or her enquiries in whatever manner he or she considers appropriate;

(c) s 109(3), as applied by s 107B(1), obliges the Appeals Convenor to make findings and recommendations in respect of the appeal and to report to the Minister on those findings and recommendations; and

(d) s 109(3), as applied by s 107B(1), requires the Minister to have regard to those recommendations.

1. The essence of ground 1.3.1 is that the Appeals Convenor's Report did not comply with the Act because it did not contain a summary or copy of Dr Mattiske's report. The Appeals Convenor's function under the Act is to consult, make findings and recommendations, and to report on those matters to the Minister. See s 109(1) and s 109(3). Part of that function requires the Appeals Convenor to summarise the appellant's case and the CEO's response. The Appeals Convenor's function does not include giving to the Minister, without discrimination, every document submitted or referred to by the appellant and the CEO. The Appeals Convenor's function includes making findings and recommendations in respect of the appeal and this necessarily involves a distillation of the material to be put before the Minister. The appellant's Appeal Form (received by the Appeals Convenor on 6 February 2014), which initiated its appeal to the Minister, stated that the appellant's grounds of appeal (as required by s 101A(1) of the Act) were in the letter dated 6 February 2014. The Appeals Convenor's Report included a fair summary of the substance of the appellant's contentions. In the circumstances, no provision of the Act, and nothing in the Act as a whole, required the Appeals Convenor's Report to summarise or attach a copy of Dr Mattiske's report.
2. The appellant's case, based on Dr Mattiske's report of July 2013, in the appeal to this court is materially different from the appellant's case, based on her report, in the appeal to the Minister. The appellant's case in the appeal to the Minister was based primarily upon alleged misconstructions of the Clearing Principles rather than upon Dr Mattiske's views. See the appellant's letter dated 6 February 2014. See also [51] and [52] above. On a fair reading of the letter dated 6 February 2014 as a whole, the appellant did not assert that Dr Mattiske was of the opinion that there was no breach of the Clearing Principles or that this opinion should be accepted. Rather, the letter asserted materially different interpretations of each relevant Clearing Principle which, if accepted, meant there was no breach.
3. In her affidavit affirmed on 29 September 2015, Ms Nabizadeh deposed:

On 1 April 2014, I attended a meeting with the Applicant. The meeting was attended by Mr Clement and me on behalf of the OAC, and by Mr Armstrong, Mr McKellar, Dr Libby Mattiske and a woman named Kelly, whose surname I cannot recall, on behalf of the Applicant.

I do not have a detailed recollection of the meeting. However, I do recall that during the meeting, Mr Clement and I went through the DER Report and discussed the clearing principles referred to in that report.

Mr McKellar, and Dr Mattiske raised comments and objections. Most of their comments related to their interpretation of the clearing principles.

After the meeting I wrote a file note recording what occurred at the meeting [18] - [21].

1. In the file note dated 1 April 2014, Ms Nabizadeh recorded, relevantly:

The appellant (as represented by [Mr McKellar]) challenged the DER's interpretation of the clearing principles, and prioritised issues surrounding this issue. The meeting therefore focused primarily on matters of interpretation.

1. Accordingly, the appellant's appeal to the Minister prioritised issues of interpretation rather than the case it has endeavoured to make in this court; for example, the case embodied in ground 1.3.1.
2. The appellant asserts in its submissions to this court that there will be a breach of the Act if the Appeals Convenor has material that is influential and favourable to an appellant, but does not draw that material to the Minister's attention. The appellant asserts that Dr Mattiske's report contained material that was influential and favourable to the appellant, but the Appeals Convenor failed to draw it to the Minister's attention. The focus of the appellant's submissions to this court on this point concerned the status of the relevant vegetation. However, the appellant's submissions were not raised in this manner in the appeal to the Minister. As we have mentioned, the appellant ran its case before the Minister on a materially different basis.
3. It is apparent on a fair reading of the Appeals Convenor's Report as a whole that a significant number of the underlying facts on which the Appeals Convenor's Report is based were derived from Dr Mattiske's report. However, on the basis of those facts and on the basis of other expert advice, the Appeals Convenor reached conclusions that were different from those of Dr Mattiske and those asserted by the appellant.
4. The factual accuracy of what Dr Mattiske observed on the relevant land were not in dispute. This is confirmed on a fair reading of the Preliminary Assessment Report and the CEO Assessment Report as a whole. What was in dispute was the conclusions to be drawn from those facts and other relevant facts.
5. In his reasons, the primary judge reproduced various observations made by Dr Mattiske in her report about fauna values [71] and in the 'Discussion and Conclusions' section of her report [72]. His Honour then said:

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 [73].

1. In his reasons, his Honour also reproduced passages from the Preliminary Assessment Report as to the relevant findings and conclusions [74]. His Honour then said:

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 [75].

1. As to ground 1.3.1(a), as we have mentioned, Dr Mattiske's report was not omitted. The Appeals Convenor, in accordance with s 109(1) of the Act as applied by s 107B(1) of the Act, consulted with other experts and received expert advice from the DER. Dr Mattiske's report was not the only expert opinion before the Appeals Convenor. Also, Dr Mattiske's principal area of expertise is flora whereas the most significant issues in dispute related to fauna. The Appeals Convenor was not obliged to adopt or follow Dr Mattiske's views.
2. As to ground 1.3.1(b)(i), it is true that much of the relevant vegetation was degraded, but it nevertheless retained environmental values. The remnant vegetation on the land was in a degraded condition due to a high degree of trampling and grazing of the understorey by livestock over a long period of time. However, the focus in the present case was on the impact of the proposed clearing on cockatoos and western ringtail possums. Those species needed the trees as distinct from the understorey. Accordingly, the vegetation, to the extent that it was degraded, related to the understorey as opposed to the trees and it was therefore unnecessary for the Appeals Convenor to emphasise that point to the Minister. However, in any event, the Minister did not misapprehend the position because his only reference in his letter to the condition of the vegetation was to the degraded condition of the understorey.
3. As to ground 1.3.1(b)(ii), in its appeal to the Minister, the appellant did not rely upon the evidence it now relies upon in relation to Clearing Principle (a). However, in any event, the substantive points arising from the evidence now relied upon were addressed in the context of the matters in contention between the appellant and the CEO as set out in the Appeals Convenor's Report and, also, in the 'Consideration' and the 'Conclusion and Recommendation' sections of the report.
4. As to ground 1.3.1(b)(iii), although no nesting hollows were identified within the area the subject of the proposed clearing permit, there was expert evidence which supported the proposition that surrounding vegetation should also be maintained. In particular, Mr Kirkby, the expert on cockatoos, observed nesting sites for black cockatoos near the area the subject of the proposed clearing permit. The DER experts were of the view that the fact that potential nesting hollows were located adjacent to the proposed clearing area was evidence as to the value of the proposed clearing area as a potential habitat for Carnaby's cockatoo.
5. As to ground 1.3.1(b)(iv), it is not correct to assert that Dr Mattiske's conclusions (relevantly, to this ground, that the proposed clearing was likely to have minimal impacts on the biological values in the area) were not 'considered and reported upon to the Minister'. The Appeals Convenor, as she was entitled to do, took a different view of the matter from Dr Mattiske. The primary judge was not satisfied that the Minister did not give personal consideration to the relevant materials [128].
6. As to ground 1.3.1(b)(v), in its appeal to the Minister based on Clearing Principle (b), the appellant relied upon matters of interpretation and a submission based on the circumstances in which a previous clearing permit had been granted. The matters of interpretation were, by necessary implication, based on facts stated in Dr Mattiske's report. The Appeals Convenor did not dispute those facts and, accordingly, did not need to address them expressly.
7. As to ground 1.3.1(b)(vi), in its appeal to the Minister based on Clearing Principle (e), the appellant relied upon matters of interpretation. It also reproduced from Dr Mattiske's report an analysis of percentages of unit types of vegetation affected. The appellant's argument based on this analysis was set out by the Appeals Convenor in her report. Although the Appeals Convenor did not mention Dr Mattiske in setting out the argument, the substance of the argument was considered and reported on.
8. As to ground 1.3.1(b)(vii), in its appeal to the Minister based on Clearing Principle (h), the appellant's argument was based on the fact that a previous clearing permit had been granted. The evidence now relied upon by the appellant in its appeal to this court was not referred to. The Appeals Convenor's Report was, appropriately, based on the issues in the appeal as formulated and made by the appellant in its appeal to the Minister.
9. We turn to ground 1.3.2 in which the appellant alleges, in essence, that the Appeals Convenor's Report omitted information about the condition of the vegetation and the extent of remaining 'vegetation Unit 10', and instead reported that 'the [CEO] specifically found that the vegetation is in degraded to good condition'.
10. The CEO Assessment Report was based on a site visit by the DER and on Dr Mattiske's report. We are not satisfied that the CEO Assessment Report contains any material omissions or inaccuracies.
11. The Appeals Convenor's Report included the appellant's argument based on the 'degraded nature' of the vegetation. We are not satisfied that the Appeals Convenor's Report contains any material omissions or inaccuracies.
12. The principal issues in the appellant's appeal to the Minister concerned, from the CEO's perspective, fauna and the vegetation as a remnant and corridor and, from the appellant's point of view, the proper construction of the Clearing Principles. In those circumstances, the condition of the vegetation was not critical to the resolution of the appeal. It was unnecessary, in the circumstances, for the condition of the vegetation to be analysed and discussed to the extent now asserted by the appellant. The Minister's function was to respond to the case advanced by the appellant, and not to investigate the application at large.
13. The evidence does not support the appellant's assertion that the Appeals Convenor and the Minister considered the vegetation to be 'below middle-order condition'. Indeed, the Appeals Convenor's Report does not refer to the condition of the vegetation in the 'Consideration' or the 'Conclusion and Recommendation' sections of her report. By contrast, earlier sections of her report state the positions adopted by the appellant and the CEO. Further, in his letter dated 3 June 2014, the Minister refers to the condition of the vegetation to the extent that he mentions the lack of understorey. In particular, the Minister 'acknowledge[d] the vegetation proposed to be cleared contain[ed] limited understorey'. Nevertheless, the Minister was of the view that the vegetation retained 'important habitat function for black cockatoos and western ringtail possum'. Accordingly, he dismissed the appeal. The Minister's decision to dismiss the appeal was arrived at despite the condition of the vegetation and not on the basis of an assumption that the vegetation was better than it in fact was.
14. In any event, vegetation that is 'below middle-order condition' may retain environmental values.
15. We are satisfied that on a fair reading of the Appeals Convenor's Report as a whole, there is no merit in the appellant's assertion that the 'Minister was left with the impression that substantial native vegetation in good condition was proposed to be cleared'.
16. Dr Mattiske's view that the vegetation to be cleared represented small percentages of the relevant vegetation types was based on the Albany Regional Vegetation Survey, which covered a very large survey area. By contrast, the DER's standard practice was to use a significantly smaller survey area. The appellant's argument in this respect was not omitted from the Appeals Convenor's Report. The report summarised the argument and noted, appropriately, that the validity of the argument depended upon the relevant area chosen for comparison.
17. The appellant did not raise, in the proceedings before the primary judge, the argument it now seeks to rely upon in this appeal to the effect that the Minister's decision on the appeal was invalid because of the manner in which the condition of the vegetation was described in the Appeals Convenor's Report. Accordingly, this issue was not considered by his Honour in his reasons. We are satisfied that, in the circumstances, it is not expedient or in the interests of justice to permit the appellant to raise this point for the first time in this appeal. In any event, for the reasons already given, there is no merit in the point.
18. We turn to ground 1.3.3 in which the appellant alleges, in essence, that the Appeals Convenor did not herself consider and report on the appeal to the Minister, but merely reported on the CEO's opposition to the appeal and 'adopted, without assessment, DER's views'.
19. In the proceedings before the primary judge, the appellant did not raise the issues now sought to be litigated in the context of ground 1.3.3. We are satisfied that, in the circumstances, it is not expedient or in the interests of justice to permit the appellant to raise these issues for the first time in this appeal.
20. However, in any event, we are satisfied that there is no merit in ground 1.3.3. As we have mentioned, the Appeals Convenor recited in her report the appellant's arguments and the CEO's responses, without making findings. In the 'Consideration' section of her report there is a discussion and the expression of opinions on the appellant's arguments and the CEO's responses, including as to the evidence presented in support of the appellant's arguments and other evidence gathered by or on behalf of the Appeals Convenor. The Appeals Convenor's recitation of the appellant's arguments and the CEO's responses did not involve the acceptance or rejection of the arguments or the responses. The Appeals Convenor's own opinions were set out later in her report under the headings 'Consideration' and 'Conclusion and Recommendation'.
21. We turn to ground 2 in which the appellant alleges, in essence, that the primary judge erred in law by ruling that the Minister is deemed to have known the information possessed by officers of the Minister's Department and, also, erred in law by relying on that ruling in rejecting the appellant's case that the Minister had not been informed of certain matters by the Appeals Convenor as set out in ground 1.3.
22. The primary judge made the following finding in relation to the Clearing Permit Guide and the Cockatoo Recovery Plan:

[T]he 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 ... 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 [156].

1. In our opinion, his Honour did not, in making that finding, rule that the Minister is 'taken to know all that his officers know'. His Honour's finding related only to the two specified policy documents.
2. Also, in our opinion, the primary judge did not rely on the alleged ruling to reject the appellant's case that the Minister was not informed of certain matters by the Appeals Convenor as set out in ground 1.3. In other words, we are not satisfied that his Honour's finding at [156] of his reasons was relied upon by his Honour in the manner asserted by the appellant.
3. In our opinion, his Honour did not err by imputing to the Minister the collective knowledge of the Department in relation to the two policy documents in question. His Honour was entitled, in the circumstances, to impute to the Minister the collective knowledge of the Department in relation to matters of general policy. His Honour did not make any further or additional finding. For example, there was no deemed knowledge of any matters relating to the appellant's land or its application for a clearing permit.

Appeal CACV 24 of 2017: the grounds of appeal

1. Appeal CACV 24 of 2017 relates to the appellant's originating summons (CIV 2096 of 2015) in the General Division of the Supreme Court.
2. The appellant relies on two grounds of appeal.
3. There is, in substance, overlap between the grounds of appeal in Appeal CACV 23 of 2017 and the grounds of appeal in Appeal CACV 24 of 2017. The grounds, and the appellant's submissions in support of them, reveal a conception of the rules of procedural fairness that is bound up with the appellant's submissions in Appeal CACV 23 of 2017 as to the merits of the application. As we will explain, the rules of procedural fairness are concerned with the procedure for decision-making, and not with the merits of the decision.
4. Ground 1 of the appeal in CACV 24 of 2017 alleges:

In ruling that the Appellant had not been denied procedural fairness in the course of an appeal (the Appeal) under s 101A(l)(a) of the Environmental Protection Act 1986 (EP Act) from a refusal by the CEO under s 51E(5)(b) of the Appellant's application under s 51E(1) for a permit to clear native vegetation (the Application), the learned trial Judge erred in law by failing to rule that each of the following, alternatively some or all of the following collectively, constituted a breach by the Appeals Convenor and the Minister of their duties of procedural fairness in the application of Part VII of the EP Act:

Relevant material effectively withheld from Minister

1.1 The Appeals Convenor omitted from her report to the Minister an appraisal or summary of, and a copy of, the expert evidence and report of Dr Mattiske, in circumstances that:

(a) Dr Mattiske's investigation for her evidence and report constituted the only expert investigation of matters and the principal expert opinion on matters relevant to the Application; and

(b) Dr Mattiske's report included the following relevant to Clearing Principles (a), (b), (e) and (h) under clause 1 of Schedule 5 of the EP Act (Clearing Principles):

(i) Only 0.06ha of relevant vegetation was in 'Good' condition and the remainder was 'Degraded' or 'Completely Degraded' and only 0.003% of 'vegetation Unit 10' was to be cleared;

(ii) The Application was unlikely to be at variance with Clearing Principle (a), for reasons she gave;

(iii) No tree hollows suitable for cockatoo nesting were affected by the Application;

(iv) The clearing proposed by the Application is likely to have minimal impacts on the biological values in the area;

(v) The Application was unlikely to be at variance with Clearing Principle (b), for reasons she gave;

(vi) The Application was unlikely to be at variance with Clearing Principle (e), for reasons she gave; and

(vii) The Application was unlikely to be at variance with Clearing Principle (h), for reasons she gave,

and thereby denied the Appellant a hearing by the Minister on those relevant matters.

1.2 The Appeals Convenor, in reporting to the Minister that the Application was at variance with Clearing Principles (a), (b) and (e), failed to report to the Minister the evidence of Dr Mattiske that:

(a) of the 13.24 ha within the Application area, only 0.06 ha was 'good' and the rest 'degraded' and that 'good' is below middle-order condition, surpassed by 'pristine', 'excellent' and 'very good'; or

(b) Only 0.003% of 'vegetation Unit 10' was to be cleared;

and thereby denied the Appellant a hearing by the Minister on those relevant matters.

1.3 The Appeals Convenor omitted from her report an explanation and appraisal of the contested proper interpretation Clearing Principle (a), for the purposes of s 51O(2) - (3) and clause 1 of Schedule 5 of the EP Act (the Clearing Principles), namely whether 'biological diversity' includes fauna, and thereby denied the Appellant a hearing by the Minister on those relevant matters.

Appeals Convenor obtained under-informed advice from third parties

1.4 The Appeals Convenor, having consulted with other persons, namely Dr Atkins and Mr Johnstone, pursuant to s 109(l)(aa) of the EP Act, and failing to inform those other persons that Dr Mattiske had given an expert report on the issues upon which those other persons were consulted, reported to the Minister that the Application area:

(a) was important for cockatoo nesting, roosting and foraging;

(b) was significant for western ringtail possum habitat,

and thereby denied the Appellant a fair hearing by the Minister on those relevant matters.

Biased deference to DER

1.5 Whereas Dr Mattiske's report or the Appeal grounds addressed issues, the Appeals Convenor failed to make findings of fact and opinion on those issues independently of the findings made by the CEO and the Department (DER) of which the CEO is chief executive officer, but instead:

(a) adopted, without assessment, DER's views that the Application was at variance with each of Clearing Principles (a), (b), (e) and may be at variance with Clearing Principle (h);

(b) adopted DER's opinion on the interpretation of Clearing Principle (a);

(c) as to Clearing Principle (a), deferred to [DER's] assessments of remaining vegetation; significance of the presence of cockatoos and a macro corridor; and the presence of a critical habitat for (unnamed) fauna.

(d) As to Clearing Principle (b), deferred to DER's assessments that the Application was at variance with Clearing Principle (b) in that certain fauna species had been recorded within 10 km of the Application area and formed a 'significant' habitat for them and other species; and the Application area formed part of a regionally significant ecological linkage.

(e) As to Clearing Principle (e), deferred to [DER's] views that the Application area was 'significant as a remnant of native vegetation';

(f) As to Clearing Principle (h), deferred to [DER's] views that 10 km was an appropriate quantification of 'adjacent or nearby',

and thereby failed to provide the Minister with a considered independent report on the Appeal.

Failure to allow Appellant opportunity to respond

1.6 The Appeals Convenor reported to the Minister advices from other persons, namely Atkins and Johnstone and Utber, that:

• tree hollows should be preserved for cockatoo nesting and surrounding vegetation should be preserved for cockatoo foraging, falsely implying to the Minister that the Application sought clearing of the trees containing hollows and surrounding vegetation; and
• the subject vegetation was used by possum as a corridor;
• a 'macro-corridor' for fauna was at risk from the Application.

without allowing the Appellant an opportunity to respond to that advice.

1.7 The Appeals Convenor, in reporting to the Minister that the Application would be at variance with Clearing Principle (e) by reason of its effect on fauna failed to allow the Appellant an opportunity to be heard on:

(a) Clearing Principle (e); and

(b) whether fauna was relevant to Clearing Principle (e).

1. Ground 2 in CACV 24 of 2017 alleges that the primary judge erred in law by ruling, at [156] of his Honour's reasons, that the Minister is deemed to have known the information possessed by officers of the Minister's Department, and, also, erred in law by relying on that ruling to reject the appellant's case that the Minister was not informed of certain matters by the Appeals Convenor as set out in grounds 1.1 to 1.4.

Appeal CACV 24 of 2017: the merits of the grounds of appeal

1. As to grounds 1.1 and 1.2, as we have noted in the context of Appeal CACV 23 of 2017:

(a) the primary judge found, and was entitled to find, that Dr Mattiske's report of July 2013 was provided to the Minister and, to the extent that Dr Mattiske's report was relied upon by the appellant in its appeal to the Minister, the report was adequately dealt with by the Appeals Convenor in the Appeals Convenor's Report; and

(b) there was no material error in the Appeals Convenor's assessment of and report as to the extent or condition of the vegetation.

1. Consequently, grounds 1.1 and 1.2 fail.
2. As to the appellant's case based on the rules of procedural fairness, the implication of the rules of procedural fairness in a statute is arrived at by a process of construction. In Saeed v Minister for Immigration and Citizenship,[6] French CJ, Gummow, Hayne, Crennan and Kiefel JJ said the implication proceeded upon 'the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann (Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ; at 451 per Jacobs J)' [12]. This assumption is derived from the principle of legality referred to by Gleeson CJ in Electrolux Home Products Pty Ltd v The Australian Workers' Union.[7] See also Momcilovic v The Queen.[8]
3. The principles and presumptions of statutory construction, to the extent they are not qualified or displaced by an applicable interpretation statute, are part of the common law of Australia. In Plaintiff S10/2011 v Minister for Immigration and Citizenship,[9] Gummow, Hayne, Crennan and Bell JJ explained:

It is in this sense that one may state that 'the common law' usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 100 - 101 [39] - [41]). If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from statute proceeds upon a false dichotomy and is unproductive [97].

1. When deciding whether the exercise of a statutory power is conditioned by the rules of procedural fairness, it is necessary to take into account the practical context in which the decision-maker must consider whether to exercise the power. See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah.[10]
2. Procedural fairness is concerned with procedures rather than with outcomes. See Minister for Immigration and Border Protection v WZARH.[11]
3. The law of procedural fairness is, of course, concerned not only with whether a decision-maker is obliged to accord procedural fairness, but also with what is necessary, in the circumstances of the particular case, for compliance with an obligation to accord procedural fairness and with whether, in the circumstances of the particular case, any such obligation has been met.
4. The content of a decision-maker's obligation to accord procedural fairness will be informed by the statutory context; in particular, the terms of the statute which creates the decision-maker's function, the nature of the function and the administrative framework in which the statute requires the function to be performed. See National Companies and Securities Commission v News Corporation Ltd.[12]
5. Procedural fairness is flexible and adaptable to the circumstances of the particular case. What is required to accord procedural fairness is variable and will depend on the circumstances and requirements of each case. See Kioa v West;[13] Saeed;[14] Duncan v Independent Commission against Corruption.[15]
6. The circumstances of a particular case include:

(a) what is known by the affected person and what can reasonably be expected to be known by the affected person in relation to the decision-maker and its processes: Sharpe v Brown;[16] Graham v Baptist Union of New South Wales;[17] and Marsh v Australian Capital Territory;[18] and

(b) the practical context in which the decision-maker is to exercise the power.

1. The determination of what is required, in a particular case, for compliance with an obligation to accord procedural fairness and of whether, in a particular case, any such obligation has been met, must be made having regard to the following observations of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam:[19]

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice [37].

See also Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc.[20]

1. A fair hearing contemplates that the parties to the hearing are properly informed of the critical issues or factors on which the decision-maker's decision is likely to turn, so that each party has an opportunity to deal with those issues or factors. See Kioa;[21] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd;[22] Ex parte Lam;[23] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs;[24] Warkworth.[25]
2. As to ground 1.3, the appellant was not denied procedural fairness in relation to its construction of Clearing Principle (a). As we have mentioned, the Appeals Convenor did not determine in her report the dispute as to the construction of Clearing Principle (a). The Appeals Convenor's approach in her report was to examine the substantial merits of the clearing permit application. Her approach was in accordance with s 109(1)(b) of the Act as applied by s 107B(1) of the Act. The Appeals Convenor's recommendation to the Minister was not based on what the appellant alleges was a misconstruction of Clearing Principle (a).
3. As to ground 1.4, the Appeals Convenor consulted with some experts in relation to various issues raised in the appellant's appeal to the Minister. The Appeals Convenor was entitled, pursuant to s 109(1)(aa) as applied by s 107B(1), to consult such persons as she thought necessary in considering the appeal.
4. Dr Atkins appears to have been provided with a copy of the Clearing Permit Decision Report (but not any other documents). Dr Atkins required the Clearing Permit Decision Report to enable him to identify the relevant land and the relevant clearing permit application, and the report was provided to him for that purpose. Dr Atkins was not provided with any other documents. See the primary judge's reasons at [50].
5. It is true that the Appeals Convenor did not provide to the experts (in particular to Dr Atkins or Mr Johnstone) 'Dr Mattiske's reports or quotations'. The appellant alleges that consequently the experts 'were unaware that the issues had been thoroughly examined by a respected expert of Dr Mattiske's calibre'.
6. In an email of 10 April 2014 from Ms Nabizadeh to Dr Atkins, Ms Nabizadeh informed him that 'the [appellant's] consultant has formed the view that the removal of vegetation [should not] be a problem'. It is unclear whether the Appeals Convenor's Office discussed Dr Mattiske's views in relation to the relevant land and the relevant vegetation with Mr Johnstone.
7. In our opinion, an expert who is consulted by the Appeals Convenor, pursuant to the power conferred by s 109(1)(aa) as applied by s 107B(1), would reasonably anticipate that there would be different views (including different expert views) as to the merits of the appeal to the Minister. They would expect to provide their own views on the issues and would not be expected to defer to the views of another expert. Further, experts consulted by the Appeals Convenor pursuant to his or her statutory power are not making decisions under the Act. They merely provide advice to the Appeals Convenor to assist the Appeals Convenor in discharging his or her statutory function of making findings and recommendations to the Minister.
8. The notion that the Appeals Convenor was obliged by the rules of procedural fairness to ensure that one expert witness was apprised of the views of another expert witness is, at best, a novel proposition. Counsel was unable to cite any authority in support of it (appeal ts 74-75). In our opinion, the rules of procedural fairness do not require the Appeals Convenor to provide all relevant expert advice in the Appeals Convenor's possession to an expert who is consulted by the Appeals Convenor pursuant to s 109(1)(aa) as applied by s 107B(1).
9. In addition, as we have mentioned, Dr Mattiske's principal area of expertise is flora. Dr Atkins was consulted in relation to fauna; in particular, the significance of the relevant vegetation with respect to the western ringtail possum. Mr Johnstone was also consulted in relation to fauna; in particular, the significance of the relevant vegetation with respect to the various cockatoo species.
10. We are satisfied that, in all the circumstances, fairness to the appellant did not require the Appeals Convenor's Office to provide a copy of Dr Mattiske's report to the experts who were consulted by the Appeals Convenor.
11. As to ground 1.5, the appellant alleges that the Appeals Convenor 'deferred to DER opinions and practices'. That allegation is mere assertion and is without merit. As we have mentioned, in her report the Appeals Convenor recounted the appellant's arguments and the CEO's responses, without making findings. In the 'Consideration' section of her report, the Appeals Convenor discussed and expressed opinions on the evidence presented by the appellant and the CEO and the other evidence collected by the Appeals Convenor's Office. Finally, in her report, the Appeals Convenor set out her opinions in the 'Conclusion and Recommendation' section.
12. For the reasons already given, the assertions in par (a) to par (f) of ground 1.5 are without merit.
13. The appellant also complains about the language used by the Appeals Convenor; for example, her statements that the CEO's or the DER's position is 'reasonable', 'justifiable' or 'supportable', rather than '[determining] the correct position'. In our opinion, there is no merit in the complaint. On a fair reading of the Appeals Convenor's Report as a whole, the Appeals Convenor properly examined the appellant's arguments and the CEO's responses and arrived at conclusions and opinions that were reasonably open to her having regard to the Appeals Convenor's obligations under the Act and the rules of procedural fairness.
14. There is no foundation for any suspicion that the Appeals Convenor failed to deal with the issues or to make findings or express opinions independently of the views expressed or conclusions reached by the CEO or the DER.
15. As to ground 1.6, the primary judge dealt with the appellant's contentions (repeated in ground 1.6 itself) that the Appeals Convenor reported to the Minister advices from Mr Utber, Mr Johnstone and Dr Atkins that:

(a) tree hollows should be preserved for cockatoo nesting and surrounding vegetation should be preserved for cockatoo foraging, falsely implying to the Minister that the appellant proposed to clear the trees containing hollows and surrounding vegetation;

(b) the subject vegetation was used by possum as a corridor; and

(c) a macro-corridor for fauna was at risk from the application,

without allowing the appellant an opportunity to respond to that advice.

1. His Honour's reasoning and conclusion in relation to Mr Utber's advice was as follows:

Non-disclosure of Mr Utber's email

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 non-disclosure meant Erujin was unable to produce evidence to rebut Mr Utber's opinion.

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

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.

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.

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 [93] - [97].

1. His Honour's reasoning and conclusion in relation to Mr Johnstone's advice (which comprised the views of Mr Kirkby that were relayed by Mr Johnstone to Ms Nabizadeh) was as follows:

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

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.

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.

The passages taken from the Preliminary Assessment Report and [the]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.

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.

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.

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.

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

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.

Non-disclosure of draft email of 10 April 2014

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.

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 [103]-[112].

1. His Honour's reasoning and conclusion in relation to Dr Atkins' advice was as follows:

Non-disclosure of Dr Atkins' advice

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.

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.

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.

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 [113] - [116].

1. In our opinion, the primary judge was correct, generally for the reasons he gave, in his conclusions relating to the advice from Mr Utber, Mr Johnstone and Dr Atkins. We merely add the following.
2. As to the macro-corridor issue, Mr Utber provided advice to the DER in relation to the status of the relevant land in the context of the Western Australian South Coast Macro-Corridor Network. His Honour explained the macro-corridor issue at [76] - [79] of his reasons. The appellant's complaint that the macro-corridor issue was not raised with the appellant in the appeal to the Minister is contrary to his Honour's finding at [96] of his reasons. The finding was reasonably open to his Honour and there is no basis for impugning it.
3. When Mr Utber's email is compared with the Preliminary Assessment Report and the Clearing Permit Decision Report it is apparent that the issue raised by Mr Utber was embodied in each of those reports. The appellant responded to the Preliminary Assessment Report and the Clearing Permit Decision Report.
4. His Honour found and was entitled to find at [79] of his reasons that:

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.

1. His Honour also found, correctly, at [97] of his reasons that:

[T]he substance of [Mr Utber's] 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 [his email] was not disclosed.

1. His Honour found and he was entitled to find at [97] of his reasons that the Appeals Convenor was not required to disclose Mr Utber's email.
2. His Honour also found, correctly, at [96] of his reasons that the appellant knew that the macro-corridor issue remained live at the appeal stage and that the appellant could have put forward additional material from Dr Mattiske, but did not do so.
3. No material error in the trial judge's reasoning and conclusion in relation to the macro-corridor issue has been demonstrated.
4. As to the tree hollows issue, the appellant alleges that the Minister may have reached his decision on the incorrect assumption that tree hollows used by cockatoos for nesting or roosting were within the area proposed to be cleared. There is no merit in the appellant's allegation.
5. The area proposed to be cleared did not contain identified nesting hollows. The Appeals Convenor's Report set out the appellant's contention that roosting trees would be retained if a clearing permit were granted. However, the area proposed to be cleared did have vegetation which had value in that the vegetation was of a kind that is generally used by cockatoos for nesting. Also, the vegetation was of value to cockatoos for foraging in the breeding and the non-breeding seasons.
6. There is a distinction between identified nesting hollows, on the one hand, and the general type of woodland breeding habitat described in the Carnaby's Cockatoo Recovery Plan, on the other. The plan describes the general type of woodland breeding habitat as:

The eucalypt woodlands that provide nest hollows used for breeding, together with nearby vegetation that provides feeding, roosting and watering habitat that supports successful breeding.

1. The Preliminary Assessment Report stated that the vegetation proposed to be cleared included the kind of woodland breeding habitat described in the Carnaby's Cockatoo Recovery Plan.
2. The Carnaby's Cockatoo Recovery Plan also describes two other vegetation types that are characterised as '[h]abitat critical to survival for Carnaby's cockatoos', namely:

(a) woodland sites known to have supported breeding in the past and which could be used in the future, provided adequate nearby food and/or water resources are available or are re-established; and

(b) in the non-breeding season, the vegetation that provides food resources as well as the sites for nearby watering and night roosting that enable the cockatoos effectively to utilise the available food resources.

1. The Preliminary Assessment Report said that the vegetation proposed to be cleared also included those two additional vegetation types.
2. On a fair reading of the Appeals Convenor's Report as a whole, it is apparent that the Appeals Convenor understood that the identified nesting hollows were outside the area proposed to be cleared. However, as stated in the Carnaby's Cockatoo Recovery Plan, the surrounding vegetation that was proposed to be cleared was critical habit for the Carnaby's cockatoo.
3. As to the possum corridor issue, on which Dr Atkins gave advice, his Honour found that:

(a) the advice provided 'did not raise an issue that was not also raised in either the Preliminary Assessment Report or in the Clearing Permit Decision Report' [113];

(b) the substance of the advice was disclosed by Ms Nabizadeh in her email of 17 April 2014 to the appellant's representative, Mr McKellar [115]; and

(c) in any event, Dr Mattiske made an additional submission on the issue raised by Dr Atkins, but she did not engage with the reasoning in the DER reports [116].

1. His Honour characterised Dr Atkins' views as advice which 'confirmed' and 'reinforced' the relevant arguments [114].
2. No material error in his Honour's reasoning and conclusion in relation to the possum corridor issue has been demonstrated.
3. The appellant complains that it made a request for a copy of a draft of the Appeals Convenor's Report and the request was refused. The complaint is without foundation. The appellant did not request a copy of a draft of the Appeals Convenor's Report. The appellant did request a copy of the DER s 106 Report. The Office of the Appeals Convenor did not provide the appellant with a copy of the DER s 106 Report. Rather, in accordance with its usual practice, the Appeals Convenor's Office suggested that the appellant direct its request to the Minister's office. The DER s 106 Report is of course a report to the Minister. It appears that the appellant did not make a request to the Minister's office.
4. In any event, his Honour found that the Appeals Convenor was not obliged to provide a copy of a draft of the Appeals Convenor's Report to the appellant. His Honour gave these reasons. First, procedural fairness does not ordinarily require a decision-maker to reveal a proposed conclusion: Apache Northwest Pty Ltd v Agostini [No 2][26] [117]. Secondly, weight must be given to the practical consideration that the deliberative process must come to an end at some point [118]. Thirdly, an obligation to disclose a draft of the Appeals Convenor's Report would be inconsistent with the statutory regime for appeals [119]. Fourthly, the Appeals Convenor's Report did not contain any conclusions that could not reasonably have been anticipated by the appellant [120].
5. The appellant's argument that the failure of the Appeals Convenor to comply with the alleged obligation to provide a copy of a draft of the Appeals Convenor's Report could have been 'partly cured' by sending the draft email of 10 April 2014 to Mr McKellar is without merit. His Honour found, correctly, that the 'draft [email] did not identify a new issue that might be resolved adversely to Erujin and self-evidently it did not contain new material' [112].
6. As to ground 1.7, the appellant alleges, in essence, that it was deprived of a hearing in relation to Clearing Principle (e). That is wrong. The appellant made submissions in its appeal to the Minister and it had a meeting with representatives of the Appeals Convenor's Office to discuss any issues it wanted to raise in relation to the appeal.
7. The appellant also alleges that it was deprived of a hearing as to whether fauna was relevant to Clearing Principle (e). However, as we have mentioned in the context of Appeal CACV 23 of 2017:

(a) there is no evidence that the Appeals Convenor or the Minister decided this issue adversely to the appellant;

(b) the appellant's contention was not raised in its appeal to the Minister; and

(c) the Appeals Convenor was entitled to deal with the appeal to the Minister as it had been formulated by the appellant.

1. Ground 2 is without merit generally for the reasons we have given in dealing with ground 2 in CACV 23 of 2017.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163.

[3] University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481, 483.

[4] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 - 8.

[5] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497.

[6] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252.

[7] Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 [21].

[8] Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [43] (French CJ).

[9] Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636.

[10] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 [31] (Gleeson CJ & Hayne J).

[11] Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 [55] (Gageler & Gordon JJ).

[12] National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 326 (Brennan J).

[13] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 612 (Brennan J).

[15] Duncan v Independent Commission against Corruption [2016] NSWCA 143 [693] (Basten JA; Bathurst CJ & Beazley P relevantly agreeing).

[16] Sharpe v Brown [1918] ArgusLawRp 103; [1918] VLR 678, 685 (Hood J).

[17] Graham v Baptist Union of New South Wales [2006] NSWSC 818 [31] - [37] (Young CJ in Eq).

[18] Marsh v Australian Capital Territory [2014] ACTSC 81; (2014) 288 FLR 116 [134] (Refshauge J).

[19] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

[20] Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 [34] (Bathurst CJ, Beazley P & Tobias AJA).

[21] Kioa v West (587) (Mason J).

[22] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 590 - 591 (Northrop, Miles & French JJ).

[23] Ex parte Lam [81], [83] (McHugh & Gummow JJ).

[24] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [32] (Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ).

[26] Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 (Buss JA) [218].