Friends of Merri Creek Inc v Meakins

REASONS FOR JUDGMENT 1 On 30 August 2001, Ms Meakins, then the Assistant Secretary, Roads Investment, as delegate of the Minister for Transport and Regional Services ("the Minister"), decided to approve Commonwealth funding for pre-planning works to realign the Hume Highway between Craigieburn and the Metropolitan Ring Road north of Melbourne. The new link promises to eliminate a heavily congested section of the principal transport route connecting Melbourne to the northern regions of Victoria and beyond. The link will cut its way through the north-eastern section of the Craigieburn to Cooper Street grasslands, habitat for 237 native plants and 114 animal species, including many that are rare or threatened, and which contain cultural values, both indigenous and non-indigenous, documented or assessed by the Australian Heritage Commission. Listed amongst the 12,000 places of natural, historic and indigenous significance in the register of the Commission, the grasslands represent some of the best remaining examples of the kind of country that covered much of the western basalt plains in Victoria before European settlement. 2 Friends of Merri Creek are a community organisation formally constituted in 1988. Over the decades, the organisation has significantly replanted, restored, conserved, protected and improved the environment of the Merri Creek catchment area, which forms part of the grasslands. As part of their endeavour to restore the Merri Creek environs, over the past six years Friends of Merri Creek have campaigned against any realignment of the Hume Highway that would adversely affect the Merri Creek Valley. The campaign includes this application for review of the delegate's decision. 3 The proposal to realign this section of the Hume Highway is not new. In 1975, a reservation for a connection between Craigieburn and the Western Ring Road was inserted in the Victorian planning schemes (with two amendments in 1977 and 1978). This was part of a long-term strategy to convert the Hume Highway to freeway standard from the New South Wales border to the Western Ring Road. The original planning scheme reservation intersected 400 hectares of the grasslands and crossed Merri Creek in three places. Aware of the importance of the grasslands and concerned about the existing location of the reservation, in March 1996, the Victorian Minister for Conservation and Natural Resources announced the creation of the Craigieburn Grasslands Flora and Fauna Reserve, which resulted in the reservation being moved to the eastern boundary of the Craigieburn site. In early 1997, the Victorian government turned to the Commonwealth government for funding to convert the final section of the Hume Highway to freeway status. 4 On 26 March 1997 the Minister approved funding for pre-construction work for the Hume Highway link. The decision to fund this work was made pursuant to s 26 of the Australian Land Transport Development Act 1988 (Cth) ("the Transport Development Act"). The Transport Development Act establishes a financial reserve for the purposes of the development and maintenance of land transport systems and for related purposes. Section 26 of the Transport Development Act gives power to the Minister to direct or invite a State to submit certain particulars of projects for the construction of national highways to be undertaken by the State and to approve the provision of financial assistance for those projects. A standing direction exists for States to submit a project or program for approval and Commonwealth funding at any time. 5 The decision the subject of this application is not, however, a decision made under s 26. In fact, it is a decision made under s 27 of the Transport Development Act to vary the original decision under s 26 to approve the project. Section 27 provides that the Minister may approve a variation of a project, the estimated cost of a project or the costs that are to be met by payments out of the reserve in certain circumstances. 6 It is relevant to the relief which the applicants seek, and to which I will later turn, that the approved funding was limited to pre-construction activities, including the cost of land acquisition, reimbursement of the cost of land already acquired and the engagement of consultants. The decision was not one approving funding for the actual construction of the realignment. Such a decision has, in fact, been made but it is not the subject of this proceeding. 7 The decision under review is a "Stage 2 approval". To appreciate what this means, it should be noted that approval for the funding of major road projects is usually given under a staged approach. Funding for projects is approved in one, two or three stages, dependent upon the project's complexity. The staging of approvals allows the Commonwealth to review its commitment to the next stage of development as estimates of the project's funding profile and timing take shape. The first stage involves carrying out a preliminary investigation for a major project. Stage 2 consists of the approval of the costs associated with the detailed planning and design of the project. Stage 2 approval does not approve construction, nor does it constitute approval for a State to proceed to call tenders. Once the initial stage 2 approval has been given under s 26, all subsequent approvals for progressive stage 2 works are made as variations to approved projects under s 27 of the Transport Development Act. In fact, the decision under review is the fourth variation to the s 26 approval. Later decisions have been made approving the actual design and construction of the road on the condition that certain environmental requirements will be met. Stage 3 approval commits the Federal government to funding the total estimated cost of the project. The amount may be reviewed in certain circumstances. 8 The steps taken to obtain Commonwealth funding commenced on 2 January 1997 when the Chief Executive of the Victorian Roads Corporation, a Victorian statutory authority ("Vicroads"), wrote to Neville Potter, the Assistant Secretary, Roads Investment, Commonwealth Department of Transport and Regional Development ("Department of Transport"), seeking approval for funding for preliminary works for the construction of the final section of the Hume Highway conversion. On 22 January 1997, Mr Potter conditionally approved the funding, pending receipt of the requisite environmental certification. To obtain approval at stage 2, a State must submit a Project Proposal Report (PPR). If a PPR revealed that stage 3 approval would constitute an "environmentally significant action" under the (now repealed) Environmental Protection (Impact of Proposals) Act 1974 (Cth) (EPIP Act), the Transport Minister was required to designate the project under the EPIP Act and a "proponent" chosen by the Minister would notify the Department of Environment and Heritage (Environment Australia) of that designation and refer the proposed project to it under the EPIP Act. 9 Mr Potter received notification on 28 February 1997 that the environmental implications for the proposed project had been assessed in accordance with the procedures agreed between Vicroads and the then Victorian Department of Planning and Development and that the proposed project would not affect the environment to a significant extent within the meaning of the EPIP Act. On 23 March 1997, Mr Potter recommended to the then Commonwealth Minister for Transport that planning works be approved subject to the certification by Vicroads that work will not commence pending resolution of environmental issues. The ministerial brief advised the Minister that the Transport Department was not aware of any reason why the proposed works would affect the environment to a significant extent. The Minister approved the funding in accordance with s 26 of the Transport Development Act on 26 March 1997. VicRoads was informed of the Minister's approval by letter dated 2 May 1997. 10 Meanwhile at State level, on 27 March 1997, the then Victorian Minister for Planning and Local Government had made a determination under the Victorian Environment Effects Act 1978 that an Environment Effects Statement (EES) would not be required for the proposed project. However, the realignment would require an amendment to the Victorian planning scheme. The Minister therefore requested the preparation of a Planning Assessment Report (PAR) by Vicroads and the appointment of an Advisory Committee ("the Advisory Committee") under s 151 of the Planning and Environment Act 1987 (Vic) ("the PE Act") to examine issues he specified under terms of reference and to conduct public hearings. This enquiry was to take place in lieu of an EES. The terms of reference required the Committee to consider various options for modifying the alignment of the Hume Highway Reservation; to review the information prepared by Vicroads about the environmental, social and economic impacts of the various options; and to make a final report. 11 At about the same time, an officer in the Department of Transport discovered that the grasslands were on the Interim List in the Register of the National Estate which is maintained pursuant to Part IV of the Australian Heritage Commission Act 1975 (Cth) ("the Heritage Act"). Section 4(1) of the Heritage Act, defines the National Estate as consisting of: "those places, being components of the natural environment of Australia or the cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community." A place is listed on an interim basis after being publicly proposed for entry in the Register and while the Commission waits for objections, considers objections or seeks other information before making a decision on whether the place should be entered in the Register. 12 Following a telephone conversation between an officer of the Department of Transport and the Commission concerning the interim listing, on 1 July 1997 the Commission wrote to the Department of Transport advising it of its obligations under the Heritage Act when determining whether or not to grant the funding. Part V of the Heritage Act is headed "Protection of the National Estate". Section 30, which is found in Part V, relevantly provides: "(1) Each Minister shall give all such directions and do all such things as, consistently with any relevant laws, can be given or done by him or her for ensuring that the Department administered by him or her or any authority of the Commonwealth in respect of which he or she has ministerial responsibilities does not take any action that adversely affects, as part of the national estate, a place that is in the Register unless he or she is satisfied that there is no feasible and prudent alternative to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken and shall not himself or herself take any such action unless he or she is so satisfied. (2) … (3) Before a Minister, a Department or an authority of the Commonwealth takes any action that might affect to a significant extent, as part of the national estate, a place that is in the Register, the Minister, Department or authority, as the case may be, shall inform the Commission of the proposed action and give the Commission a reasonable opportunity to consider and comment on it. (4) For the purposes of this section, the making of a decision or recommendation (including a recommendation in relation to direct financial assistance granted, or proposed to be granted to a State) the approval of a program, the issue of a license or the granting of a permission shall be deemed to be the taking of action and, in the case of a recommendation, if the adoption of the recommendation would adversely affect a place, the making of the recommendation shall be deemed to affect the place adversely." The letter from the Commission described the Department of Transport's obligations as follows: "Section 30 thus seeks to prevent unnecessary destruction or degradation of the national estate by the Commonwealth. It requires that a Commonwealth body determine: 1) whether or not its proposed action will have an adverse effect on a national estate place; 2) if so, then whether this action is unavoidable due to the absence of feasible and prudent alternatives; and 3) if unavoidable, what measures can be taken to minimise adverse effects." The Commission noted that the Department of Transport had already approved funding to VicRoads for planning works, and considered that the provision of any impact assessment should address all Commonwealth concerns. The Commission gave the following advice: "Given the significance of the grasslands and the presence of threatened species, it is highly probable that any decision to grant funding for the road construction would also need to consider the environmental obligations of the Environment Protection (Impact of Proposals) Act and the Endangered Species Protection Act. The Commission strongly recommends that the most effective and timely manner to address these and national estate obligations would be for your department to designate the proposal under the EPIP Act as a matter of urgency, so that joint Commonwealth-State assessment can occur…" 13 As a consequence, the original recommendation by VicRoads, which had asserted that the proposed project would not affect the environment to a significant extent within the meaning of the EPIP Act, was amended to accommodate the obligations owed by the Transport Minister under the Heritage Act. On 5 July 1997, Mr Potter wrote to Vicroads advising that it was the designated proponent of the project under the EPIP Act and nominated Mr Jordon, Chief Executive of Vicroads, as the proponent of the environmental assessment review. In his letter, Mr Potter referred to the existing Victorian environmental protection arrangements in place, advised that they were deficient, and requested that they be reviewed. Mr Jordon replied to Mr Potter's letter. He said that all planning was being managed in accordance with the relevant Victorian guidelines and legislation and the arrangements developed between the Commonwealth Department of Environment, Sport and Territories (the department which succeeded the Department of Environment and Heritage and was also known as "Environment Australia") and Victoria's Planning and Heritage Department, in order to meet Commonwealth requirements. 14 On 16 July 1997, Mr Jordon requested, and on 21 September 1997, Mr Potter approved, a variation of funding under s 27 of the Transport Act to cover the additional cost incurred in the investigation of various freeway realignment options. By that time, six options were under investigation by Vicroads, details of which had been sent to Mr Potter on 11 September 1997. 15 The Advisory Committee held a meeting on 29 September 1997. Environment Australia tabled a submission suggesting that the Advisory Committee consider various alternatives to the six options then under consideration, including a "no construction" option. The submission was later amended to take account of listings under the Endangered Species Protection Act 1992 (Cth) ("the ESA"). Later, there were discussions between Environment Australia, the Victorian Department of Planning and Local Government and Vicroads during which it was agreed that a cooperative environmental assessment be undertaken to satisfy the EPIP Act, the Heritage Act and the ESP Act. The agreement was confirmed by letter dated 17 October 1997 from Environment Australia to the Director of the Victorian Department of Infrastructure. By this time, the Advisory Committee had agreed to investigate further alternative transport options including the option whether there was a need for a realignment at all. So, as at December 1997, the Advisory Committee had before it seven options under investigation. 16 By letter dated 12 October 1998, the Victorian Minister for Planning and Local Government confirmed to the Advisory Committee that its Terms of Reference required it to determine whether an acceptable alignment was available and a further Term of Reference was subsequently added to its brief: "To recommend any planning or other measures to manage land use and to protect native grasslands and other environmental features in the area affected by a recommended freeway alignment, if one is identified." 17 In October of 1998, one year before the release of the Advisory Committee's report, VicRoads published the Planning Assessment Report ("PAR") which had been requested by the Minister for Planning and Local Government on its appointment in March 1997. The PAR examined the seven options and recommended Option 1. By that time, the grasslands had been entered into the Register of the National Estate. 18 The Advisory Committee conducted further public hearings during May 1999 for the purpose of giving people an opportunity to be heard in support of their submissions in relation to VicRoad's PAR. Forty-eight written submissions were received and all those who had filed a submission were given an opportunity to be heard. 19 In October 1999, the Advisory Committee released its report which, after considering each of the seven options, recommended Option 5 as the preferred route. The report referred to the Heritage Act and stated that one of the Advisory Committee's objectives had been the protection of any place in the Register of the National Estate from adverse effects to the "maximum extent that is feasible and prudent" as well as to "take all measures" that could reasonably be taken to "minimise the adverse effect". The report commented that this "places an extremely high onus on those responsible to protect places in the Register" and "casts an onus on VicRoads to establish why traffic benefits and costs should outweigh environmental and cultural values." 20 The Victorian Minister for Planning was not satisfied with the range of options considered by the Advisory Committee and directed the Department of Planning and Local Government (now called the Department of Infrastructure) to convene a working party together with the Victorian Department of Natural Resources and Environment and VicRoads to investigate further alternative routes. The objective of the working party was to identify an alignment and design a cost-effective freeway link that would, among other things, prevent if possible impacts on habitats of national significance and avoid or minimise impacts on habitats of State significance and protect areas and sites of natural or cultural significance. 21 The working party identified three additional options as having sufficient merit to warrant more detailed examination. These were identified as Options X, Y and Z. The Victorian Department of Infrastructure report was released in July 2000 outlining the considerations and on 21 August 2000, the Minister for Planning appointed a Second Advisory Committee under s 151 of the PE Act to conduct public hearings and investigate and report on matters set out in new Terms of Reference. 22 Meanwhile, the EPIP Act was repealed on 16 July 2000 and, following the commencement of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), agreement was reached between VicRoads as designated proponent of the project and the Environment Minister pursuant to item 5 of Schedule 1 to the Environmental Reform (Consequential Provisions) Act 1999 (Cth) that the EPIP Act should still continue to apply to the proposed project. 23 The Second Advisory Committee's Report was published in December 2000 and recommended Option Y as the preferred route. 24 On 20 February 2001, the Victorian Minister for Planning forwarded to the Transport Minister his assessment of the proposed project. In his assessment, the Victorian Minister concluded that the recommendations of the Second Advisory Committee should be adopted. On 21 February 2001, the Premier of Victoria, together with his Ministers for Planning and Transport announced that the government had approved the recommendation by the Committee of Option Y as the preferred route for the realignment. 25 On 21 March 2001, the General Manager of Road System Management at VicRoads wrote to Mr Potter seeking further stage 2 approval for Federal funding of $38 million for pre-construction and land acquisition activities. The request noted that the Victorian government had approved the recommendation of Option Y and that VicRoads was to prepare a Project Environmental Protection Strategy. The Department of Transport withheld its approval pending final resolution of all environmental and alignment issues. 26 As at late July 2001, a modification to Option Y was still being considered by Vicroads. Apparently, the Victorian Minister for Transport had suggested that the route should not traverse the Whittlesea Gardens. The Victorian Minister for Planning sought the Federal Transport Minister's approval prior to amending the relevant planning scheme. The modification was approved on the basis that the Victorian government would be responsible for the added costs to the project subject to any environmental matters. 27 In late August 2001, Ms Meakins, prepared a minute to the Minister for Transport, recommending that the Minister send a letter to the Victorian Minister for Transport seeking assurance that his Department would give appropriate consideration to a report co-authored by Professor Russell, Melbourne's Northern Gateway: An Integrated Approach, ("the Russell report") and advising that there were many recommendations in the Russell report covering public transport and rail freight options, which might merit consideration "following finalisation of the route selection process". It was noted that because the Russell report recommended alternatives to the original Craigieburn Bypass, many of the report's recommendations had been overtaken. Ms Meakins' advice was accepted and the Minister for Transport sent the letter to his Victorian counterpart on 16 September 2001. The Russell report is of some importance and I will discuss it in more detail later. 28 On 23 August 2001, the Commonwealth Environment Minister wrote to the Transport Minister advising that neither a PER nor an EIS would be required under the EPIP Act. The Environment Minister suggested that the approval for further Federal funding for the project be granted subject to a number of conditions. One condition was that Vicroads should consult with the Commission and Environment Australia "on the development of Environmental Management Plans that affect matters on the Register of the National Estate". 29 The decision granting approval for further funding (being the decision under review) was then made. Following that decision, there was a stage 3 approval for the design and construction of the Connection Road between the proposed bypass and the Hume Freeway. Later, a request from VicRoads for an additional $263m for a stage 3 variation to the project was approved on the condition that the environmental requirements set by Environment Australia during stage 2 were met. None of the decisions made either before or after the decision of 30 August 2001 are subject to challenge. 30 Before turning to the grounds upon which the decision is challenged, a number of preliminary observations should be made. The first concerns the identity of the decision-maker. I have already mentioned that the decision to approve the funding was made by Ms Meakins. She was acting as delegate of the Minister for Transport pursuant to a delegation made under s 39 of the Transport Development Act. According to Re Reference under Section 11 of the Ombudsman Act 1976; Ex Parte Director General of Social Services (1979) 2 ALD 86, a decision of the then President of the Administrative Appeals Tribunal, Brennan J, such an act by a delegate is not to be treated as vicariously done by the Minister. The delegate is not the agent of the Minister but may herself exercise the power conferred on the Minister. It follows that the decision under challenge is the decision of the delegate, and not a decision that should be attributed to the Minister. 31 The second observation concerns the subject matter of the delegation. According to the instrument of delegation the Minister delegated his powers and functions under s 26 and s 27 of the Transport Development Act. It has been assumed that this delegation is sufficient to confer upon the delegate the right, as well as to impose upon her the duty, to reach the state of satisfaction required by s 30 of the Heritage Act when making a decision under s 26 or s 27 of the Transport Development Act. I am prepared to proceed upon the correctness of this assumption, although I am bound to say that the reasons for it are not self-evident. Perhaps the parties had in mind s 34A of the Acts Interpretation Act 1901 (Cth). According to that section, where the exercise of a power or function is dependent upon the opinion, belief or state of mind of the decision-maker and that power or function has been delegated, the power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate. 32 The third preliminary observation is related to the second. It is whether the duty imposed by s 30 is in fact capable of being delegated to the person who is delegated to make a decision under s 26 or s 27 of the Transport Development Act. There is, of course, a power of delegation in the Heritage Act itself. It is found in s 47. But that power is limited to a delegation of the Commission's powers. It has no application to the duty imposed upon the Minister by s 30. This notwithstanding, the case has been argued upon the assumption that the Minister's duty could be assumed by the delegate. It is not necessary to determine whether this assumption is well-founded, or whether the state of satisfaction referred to in s 30 must be a state of satisfaction reached by the Minister himself after due enquiry. The parties have chosen their battleground, and it cannot be shifted by the court. 33 The final observation concerns the manner in which a decision-maker can reach the state of satisfaction required by s 30. It will by now be apparent that the processes leading to the making of the impugned decision were complex and undertaken by a number of persons and organisations at both Federal and State level. It appears to have been accepted on both sides that the entire process of enquiry and investigation, including the matters taken into account and the views formed from time to time by the relevant State and Federal bodies and officials, could be adopted by, or attributed to, the delegate. This is not an instance of delegation in the strict sense, but is similar to the case where the decision-maker's satisfaction is reached through the activities of officers in the decision-maker's department such as was considered in Metropolitan Borough & Town Clerk of Lewisham v Roberts [1949] 2 KB 608. It seems to me (although I do not make a finding to that effect) that once it is accepted (as in this case the parties have accepted) that the obligation imposed by s 30 need not be observed by the Minister personally, because to hold otherwise would create unreasonable difficulties in the administration of the Transport Devolpment Act, then it probably follows that the person with the delegated power need not personally deal with every aspect of the deliberative process. If the deliberative process which is in fact undertaken covers everything that should be dealt with, it seems appropriate that the decision-maker can "adopt" that process as her own. 34 We can now deal with the grounds of challenge. Three grounds are relied upon: