Friends of the Gelorup Corridor Inc v Minister for the Environment and Water

Federal Court of Australia|2023-04-14|Before: Smith J

The interlocutory application dated 12 April 2023 be dismissed.
Costs of and incidental to the interlocutory application be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 In 2022 The Friends of the Gelorup Corridor Inc (FOGC) challenged the validity of an approval granted by a delegate of the Minister for the Environment and Water to the Commissioner for Main Roads on 29 June 2022, being approval EPBC 2019/8543 (Approval), to construct and operate 10 km of new freeway near Bunbury, known as the southern section of the Bunbury Outer Ring Road (BORR), or the Bunbury Bypass. 2 In August 2022 FOGC sought an interim interlocutory application on an urgent basis to prevent works being carried out pending the determination of an application for judicial review in respect of that Approval. 3 The injunction application was dismissed: Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2022] FCA 944 (injunction judgment). 4 The judicial review application was heard in December 2022, and judgment was delivered by the primary judge in the space of a week in order to enhance the prospect of resumption of identified clearing by 1 March 2023. The judicial review application was dismissed: Friends of the Gelorup Corridor Inc v Minister for the Environment and Water (No 2) [2022] FCA 1554 (primary judgment). 5 It was known to FOGC from an MNES ('matters of national environment significance') fauna management plan approved on 28 July 2022, that clearing of so-called category 1 habitat areas by the Commissioner was prohibited between 31 August and 28 February of a relevant year. As the prohibition would cease on 28 February 2023, it was also apparent that it was open to the Commissioner to resume clearing from 1 March 2023. 6 On 19 January 2023 FOGC filed an appeal from the orders of the primary judgment. Despite the prospect of clearing commencing on 1 March 2023, FOGC did not seek to have the appeal expedited. The appeal is listed for hearing before a Full Court on 18 May 2023. 7 On 12 April 2023 FOGC filed an application for an urgent interlocutory injunction. These reasons concern that application. 8 By the application, FOGC seeks an order that the Commissioner, whether by its employees, servants, agents, officers, contractors or otherwise, be restrained from undertaking or continuing to undertake any action under the Approval, in a particular area, being an area referred to as Patch 7, until the hearing and determination of the appeal. 9 Correspondence in evidence before me indicates that FOGC requested that the Commissioner defer clearing of Patch 7 until after the appeal is determined, but the Commissioner refused to do so. The parties entered into further correspondence, the effect of which was that FOGC threated to bring an application for an urgent injunction should the Commissioner not agree to defer works; the Commissioner disclosed that there would be certain short deferrals in any event due to conditions; but on 6 April 2023 the Commissioner informed FOGC that the works would only be deferred until Monday, 17 April 2023. 10 When an injunction application was eventually filed on Wednesday, 12 April 2023, in circumstances that required a hearing and decision within 48 hours, the Court had little option but to allocate it to a duty judge, rather than referring it to the Full Court which will be determining the appeal in due course. 11 So, pursuant to s 25(2B)(ab) of the Federal Court of Australia Act 1976 (Cth), I heard the application as duty judge on Thursday, 13 April 2023. 12 Matters such as these involving competing priorities are difficult. The FOGC is clearly genuinely committed to the preservation of the habitat areas of endangered species, relevantly being the western ringtail possum, three species of black cockatoo and the small fish known as the black-stripe minnow. Counsel for the FOGC perhaps encapsulated its concerns with his comment that 'nature should always win over rehabilitation'. 13 However, there are important competing interests. It must be borne in mind that the area that the Commissioner seeks to clear commencing on 17 April 2023 is a small area (less than one hectare) and there are a number of significant matters to be weighed in the balance in deciding whether interlocutory relief should be granted. 14 For the reasons that follow I have decided that the application should be dismissed.

Principles - interim injunctions in the context of an appeal 15 The Court has power to grant interlocutory relief pending the determination of an appeal: s 25(2B)(ab) of the Federal Court of Australia Act. 16 There was no real dispute between the parties as to the applicable principles. They are discussed in detail elsewhere. It is sufficient to refer to Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [13], [15] (French J); Mylan Health Pty Ltd v Sun Pharma ANZ Pty Ltd (No 2) [2019] FCA 505 at [46]-[49] (Yates J); and Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1585 at [27]-[41] (Colvin J). 17 Whilst informed by the principles that apply where an injunction or stay is sought pending trial, as well established by authorities including Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[57], the position where an injunction is sought pending appeal is not wholly analogous. 18 The Commissioner usefully provided a summary of the principles as discussed in Barngala, and I extract that summary, as I consider it fairly records the position: 36. First, an injunction application in an appeal differs from an injunction application in a first instance proceeding insofar as the injunction may preserve appeal rights, but will, at the same time, prevent the operation of a determination of those rights that has already been undertaken (at [28]). 37. Second, the starting point is that a party is prima facie entitled to the fruits of a judgment, such that an applicant for an injunction seeking to restrain a successful party from enforcing a judgment must show special circumstances to justify a departure from the ordinary rule (at [29]-[32], [38]-[39]). 38. Third, while the general principles applicable to an application for injunctive relief at first instance remain relevant, an injunction pending an appeal is directed to protecting the integrity of an appeal right which brings a different perspective (at [33]-[35], [38]). In the context of an appeal consideration is required of whether: (a) there is a sufficient likelihood of success in demonstrating error on the part of the primary judge (and the Court's assessment of the strength of the case on appeal will be influenced by the fact that there has been an adverse judgment at first instance); and (b) the balance of convenience and justice favours the grant of relief. It may be helpful to look at the matter in terms of where the greatest risk of an injustice would lie if an injunction was granted and the claim ultimately refused compared to if an injunction was refused and the claim was ultimately upheld. 39. Fourth, as the injunction is to protect an appeal right, the appellant must be able to go so far as to show that refusal of the injunction would render the appeal nugatory by substantially depriving the appellant of the benefit of that right. If it does, the Court must evaluate the strength of the appeal as well as where the balance of convenience lies. An appeal based on grounds that are assessed as having considerable merit together with significant consequences for a respondent if deprived of the benefit of a judgment at first instance will not justify an injunction unless it can be demonstrated that the appeal right will be rendered nugatory if the injunction is not granted (at [36]-[37]). 40. Fifth, whether an appeal right would be rendered nugatory if an injunction were not granted is assessed in a practical way having regard to the consequences to the appellant if the appeal was to succeed in circumstances where the respondent had taken steps on the basis of the correctness of the decision of the primary judge (at [40]). 41. Sixth and taking account of the above, an applicant for injunctive relief pending the outcome of an appeal must demonstrate (at [39]): (a) the ultimate benefit of a successful exercise of the appeal right is in jeopardy if there is no injunction; (b) there is sufficient strength in the argument to the effect that there was error in the primary decision to contemplate a restraint upon its being given effect; and (c) a sufficiently serious consequence for the applicant if an injunction was not granted to justify depriving a party until the outcome of the appeal is known of the benefit of what is a considered determination of the issues after a final hearing.

The regulatory scheme 19 The primary judge explained the process by which the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) prohibits certain conduct without approval: primary judgment at [1]-[3]. It is not necessary to repeat or address in detail the statutory scheme. 20 However, a brief description provides useful context to some of the matters referred to below relating to the merits of certain appeal grounds. 21 Part 3 of the EPBC Act sets out requirements for environmental approvals. Section 18 addresses actions with a significant impact on listed species without approval. For example, s 18(3) provides that a person must not take action that has or is likely to have a significant impact on threatened species. 22 Part 7 of the EPBC Act addresses deciding whether approval of actions is needed. If the taking of proposed action is prohibited without an approval, it is a 'controlled action' (s 67). Such proposed action must be referred to the Minister (s 68). The Minister decides if the action is a 'controlled action' and ultimately may approve the proposed action (s 130(1)) after receiving assessment documentation or a report (s 133). Section 136(1) prescribes the mandatory considerations that the Minister needs to take into account, and may impose conditions on any approval (s 134). 23 Pursuant to s 391(1), the Minister must take into account the 'precautionary principle' when making a decision under s 133. Section 391(2) explains that the precautionary principle is that a lack of full scientific certainty should not be a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage. 24 As will be seen, the grant of conditions to an approval and the operation of s 391 are central to the appeal in this matter.

The Approval in this case 25 In this case, the proposal to construct the BORR was referred to the Minister who determined it to be a controlled action. A recommendation report was provided to the Minister. On 29 June 2022 a delegate of the Minister approved the proposed action on conditions. The conditions included the provision of management plans and an offset strategy. The delegate subsequently provided reasons for the decision. 26 The Approval authorised the clearance of 60.9 hectares of western ringtail possum habitat. Clearing areas are referred to by categories. A category 1 clearing area refers to an area of land to be cleared where resident and transient western ringtail possums are expected to be encountered during clearing. Clearing in such an area can only be conducted in the period 1 March to 30 August each year. 27 The primary judge summarised the reasons given by the Minister's delegate for the Approval and its conditions as follows: [6] The reasons given by the Minister's delegate for the approval accepted that the proposed action was likely to have a significant impact on a number of ecological communities and species. It addressed the respects in which the proposed action would clear banksia woodlands (endangered), tuart woodlands (critically endangered), black-stripe minnow habitat (endangered), foraging habitat and potential breeding habitat for three species of black cockatoo (vulnerable and endangered) and western ringtail possum habitat (critically endangered). The reasons explained why, in the view of the delegate, the proposed action if approved subject to certain conditions, would not have an unacceptable impact on the communities and species as described above. The reasons accepted the view of the department expressed in the recommendation report that the proposed clearing was not likely to result in a significant impact to other listed species because they were not present within the proposed action area. [7] For present purposes, the following conditions of the approval assume significance: (1) conditions to the effect that the Commissioner must submit various management plans which must specify certain matters to the Minister's satisfaction; and (2) conditions requiring the Commissioner to submit to the Minister an offset strategy which meets the requirements of a published departmental policy entitled the Environmental Offsets Policy 2012 (Offsets Policy) and to implement that strategy.

The grounds of appeal 28 Before the primary judge the FOGC challenged the basis upon which the Approval was given on a number of bases, relevantly in the following terms: (1) the conditions requiring the submission and approval of the management plans are invalid as they impermissibly defer the substantive evaluative task to be undertaken by the Minster's delegate until after the approval was given (claim 1); (2) the conditions requiring the offset strategy and offset management plans are likewise invalid. They also lack any specificity or detail and consequently do not have the necessary certainty to be valid conditions (claim 2); and (3) the Minister's delegate did not lawfully consider the precautionary principle as required by the Act (claim 3). 29 By ground 1 FOGC asserts that the primary judge erred in failing to accept the first claim. It says that the imprecise terms of condition 8 of the Approval show that the Minister made a decision without having formed a view as to precisely what must be done by way of a management plan, and so there had been a deferral of the evaluative task. 30 By ground 2 FOGC asserts that the primary judge erred in failing to accept claim 2. It says that the thrust of the decision was that the proponent would be required to identify and achieve offsets substantially beyond those proposed, but that by the time of the Approval they had not been contemplated by the proponent or delegate, let alone with any particularity. 31 By ground 3 FOGC asserts that the primary judge erred in his construction of s 391 of the EPBC Act. It asserts that this provision required the Minister to take account of the precautionary principle and that this was a mandatory factor or matter that had to be considered, a course that was not undertaken by the Minister. 32 All counsel accepted that this hearing is not the occasion to delve fully into the arguments. FOGC submitted it has reasonable prospects of success in the appeal. The Minister contended that the grounds lack merit. The Commissioner adopted the Minister's submissions as to merits. I will deal further with the primary reasons and the appeal grounds below.

Application of principles in this case 33 I propose to address the various arguments of the parties in the following order and context (whilst not intending to compartmentalise arguments that inevitably have some overlap): (1) the balance of convenience - it makes sense to start with this because the issues between the parties are highlighted by setting out the evidence about Patch 7; (2) the merits of the appeal grounds; and (3) the question of whether the refusal of the application for injunctive relief will render the appeal nugatory or diminished.

Patch 7 - the area the subject of the application 34 Patch 7 is an area of some 9.16 hectares that falls within the Gelorup section of the development envelope. It is a category 1 western ringtail possum habitat. 35 FOGC relied on an affidavit of its solicitor, Vanessa Bleyer. FOGC contended that it is particularly concerned about Patch 7 and its preservation, 'as it serves as habitat for critically endangered species including the western ringtail possum and black-stripe minnow'. FOGC said in correspondence to the Commissioner's solicitors that the 9.16 hectares comprising Patch 7 is 'the area of greatest concern' within the development envelope. FOGC referred in its correspondence to a tree survey report and other surveys identifying a diversity of flora, including endangered trees and those used for habitat by endangered fauna and various photographs used in newspaper articles etc. It said that these conveyed the environmental significance of the area to its 'protection efforts'. I have borne these concerns in mind in my assessment of this application, albeit that some are expressed at a general level. 36 FOGC also referred in its submissions to the black-stripe minnow, described as a short-lived fish (one year) which is able to survive dry summer conditions by aestivating (burrowing) into moist soils, emerging following rainfall. It was submitted that recent rainfall means that the fish are likely to be emerging to disperse.

The urgency to commence limited clearing within Patch 7 37 Mr Mark Hazebroek, the principal project director at Main Roads of the BORR project, gave affidavit evidence as to why the Commissioner seeks to commence clearing within a certain part of Patch 7 on Monday 17 April 2023. Mr Hazebroek in his evidence sometimes refers to the BORR's Alliance participant. I understand this to be a reference to a group of contractors and consultants which was awarded the design and construction contract for the BORR and later joined with Main Roads to form the 'South West Gateway Alliance'. 38 Mr Hazebroek explained that: (a) as a category 1 clearing area, clearing works in Patch 7 can only be commenced after 1 March 2023; (b) within Patch 7 there is also a location called Five Mile Brook, which contains habitat for the black-stripe minnow. Under the fauna management plan, initial earthworks in black-stripe minnow habitat must, where practicable, occur during summer months (said to be October to April) or when wetlands are dry and water levels are at their lowest; (c) the fauna management plan also identifies that at Five Mile Brook a clear span bridge with footings outside of the bed and banks of the channel will be installed to maintain habitat connectivity and hydrology for the black-stripe minnow; (d) there is therefore a limited window of opportunity in which to clear within Patch 7 consistently with the fauna management plan - where there is overlap between the Five Mile Brook area, the window for clearing is limited to approximately March and April only; (e) if clearing is not undertaken at Five Mile Brook in April 2023, it is highly likely that it will not be possible to do so until March 2024; (f) a six month look ahead Program has been produced for the BORR project commencing from 3 April 2023 (and was in evidence); (g) in accordance with the Program it was previously proposed to clear an area of less than one hectare in Patch 7 in the business week commencing 11 April 2023, and being an area referred to as the 'access track and around Five Mile Brook only' (proposed clearing); (h) this represents approximately 1.6% of the 60.9 hectares of western ringtail possum habitat that may be cleared under the Approval, or about 2.2% of the approximately 45 hectares of category 1 clearing area that may be cleared under the Approval; (i) the purpose of the proposed clearing was to begin ground works for bridge preparation at Five Mile Brook prior to winter, and to provide an access track of approximately 7 metres in width to both ends of the works at Five Mile Brook; (j) in light of the Appellant's foreshadowed injunction application, any clearing within Patch 7 has been postponed until Monday, 17 April 2023; (k) there are no other delays that would prevent the proposed clearing from commencing; (l) the Program for Patch 7 clearing now provides that the proposed clearing is of eight days duration to start on 17 April 2023 and finish on 26 April 2023; (m) the proposed clearing works are being prioritised as those works are subject to the identified restraints arising from the relevant area comprising habitat for both western ringtail possum and black-stripe minnow; (n) the proposed clearing is a critical path item due to the need to clear the area before ground conditions become unsuitable due to autumn/winter rains; (o) it is not necessarily the case that all eight days in this period are required to complete the proposed clearing - this will depend on a range of factors including weather, personnel availability, speed of progress and whether, in the opinion of a fauna specialist, the clearing works need to stop to reduce risk to western ringtail possums; (p) given delays incurred to date, 17 April 2023 is the latest the proposed clearing can commence and be completed without unacceptable risk that the ground conditions become unsuitable for clearing as a result of the autumn/winter rains; (q) the proposed clearing should, where practicable, occur in the summer months or when wetlands are dry and water levels are at their lowest given the area is black-stripe minnow habitat. Additionally, given the clearing at Five Mile Brook is for the purpose of bridge preparation works, the proposed clearing is best undertaken when water levels are at their lowest. It will not be possible to clear the area at Five Mile Brook once the ground conditions become too soft for the clearing machinery to traverse and be used safely; (r) other clearing works are due in the remainder of category 1 Patch 7 for 10 days duration but are not due to start until 7 August 2023 (so after the hearing of the appeal), and the clearing is not subject to the same weather constraints or ponding that pertains to the proposed clearing; and (s) the Program lists other works (such as foundation preparation and retaining wall construction) through to 7 December 2023 and the works must be undertaken sequentially. 39 According to information that Mr Hazebroek accessed online on 12 April 2023 from the Bureau of Meteorology, the mean April rainfall in Bunbury is 38.4mm. The mean rainfall in Bunbury for the month of May increases to 99.5mm. 40 Mr Hazebroek states (based on the information provided by Mr Ernie Stead-Richardson, the environmental manager for the Alliance participant) that the Five Mile Brook area was inspected by the Alliance participant in collaboration with a representative from SLR Consulting, who are the specialist aquatic consultants for the project, on 11 and 12 April 2023. Mr Stead-Richardson informed him that there is no visible ponding of water in the floor of Five Mile Brook within the development envelope. 41 On this basis Mr Hazebroek believed as at 13 April 2023 that the ground is currently sufficiently dry for the proposed clearing to proceed. He acknowledged, however, that the ground will need to be checked on the day that the clearing works commence to ensure the conditions remain appropriate. 42 FOGC challenged by its submissions the Commissioner's assertions that the proposed clearing must be done now and that it would impact the sequential nature of the works if it were delayed. Clearly FOGC is at a forensic disadvantage in challenging the matters upon which Mr Hazebroek relies, his affidavit having been filed shortly before the hearing and referring to some information that FOGC is unlikely to otherwise hold. However, that is a product of the nature of this urgent application, and I have no grounds upon which to doubt Mr Hazebroek's evidence. I take into account that he is not an independent witness, in the sense that he is involved in the BORR project (the 'self-serving' nature of the Commissioner's evidence having been touched upon by counsel for FOGC), but the evidence is credible and I have no reason to doubt its reliability. I accept his evidence as to the urgency and sequencing for the purpose of this interlocutory application. 43 FOGC also submitted (by Ms Bleyer's affidavit) that there was a chance that the window for the proposed clearing to be done might be extended due to continuing suitably dry weather conditions, relying on a Bureau of Meteorology website extract that indicated that 'there is a 60% to greater than 80% chance of lower than median rainfall and so there will be a drier than average May to July for most of Australia'. I have given this evidence little weight, only because of its very general nature, compared with the more geographically specific nature of the Bureau of Meteorology information relied upon by Mr Hazebroek. 44 Although I acknowledge FOGC's submission that works may be undertaken outside of the designated months if the relevant habitat is dry (and so the black-stripe minnow is dormant), the evidence does not support the prospect of dry weather continuing into May, particularly when one has regard to the expected increase in the mean rainfall in Bunbury in May to 99.5mm. 45 I accept that there is a genuine reason for the proposed clearing to be undertaken urgently, to take advantage of a small window of time before the ground is not sufficiently dry to proceed, and having regard to the timing requirements in place to otherwise protect the black-stripe minnow. I also acknowledge that regardless, there is no certainty that the work will commence or be completed during the designated period. The weather conditions may decline. There may be issues relating to the western ringtail possum that intervene, as has happened previously, leading to voluntary deferrals. The prospect of those risks eventuating is unknown. The Commissioner has established sound reasons for seeking to commence the proposed clearing as soon as possible.

Delay costs 46 Mr Hazebroek gave evidence of the potential delay costs if the proposed clearing cannot proceed. He stated that assuming the proposed clearing is delayed until March 2024, the completion for the BORR south project is estimated to push out by six months from December 2024 to May 2025. He said that this is because there would be no bridge preparation or foundation works until mid-2024. In addition, due to wet conditions in winter 2024, some bridge works would still carry forward to spring 2024. Bituminous surfacing and finishing works would then be expected to be completed in this section around May 2025. 47 Based on expenditure rates of the Alliance participant for overheads, Mr Hazebroek said that any delay to completion of the project will cost approximately $4.21 million per month of delay (a rough breakdown of items was provided), with a contingency of up to 20% to be factored in, to take account of other potential implications such as interrupted contracts, scheduling delays etc. 48 Mr Hazebroek estimates that a six month delay to completion would equate to, at minimum, a cost of $25.26 million, which could be higher taking into account estimated contingencies. 49 Again, FOGC was not in a position to contest these figures. It suggested that delay costs could be minimised by re-deployment of equipment and personnel, and the Commissioner accepted that some re-deployment might be possible. However, I accept based on the evidence that a delay to the program of six months is likely if the proposed clearing is not completed in April 2023. I also accept that even allowing for some mitigation steps, the financial effect of the delay costs are likely to be significant, and in the vicinity of many millions of dollars.

The benefits of constructing the road 50 The Commissioner also points to the benefits of the BORR to the community as a matter relevant to the balance of convenience. 51 The Commissioner submitted that the BORR (southern section) is part of the larger BORR which will provide a 27 km four-lane, high standard road, easing congestion and separating local and regional traffic. It submitted that the BORR will ensure more efficient truck movements for the freight transport industry and improved safety for nearby residents. 52 The Commissioner submitted that: The benefits of BORR will include improved freight efficiency with a more direct route to Bunbury port and the separation of freight and local traffic from the current network; a safer road system reducing congestion and interaction between freight and local traffic in central Bunbury; spending a minimum of $450 million with local South West businesses; spending a minimum of $30 million with Aboriginal businesses; generating long term job opportunities for locals; creating training and job opportunities for entry level positions; and training and upskilling unemployed and job transitioning people in the community. 53 I accept that the potential for such broader community benefits to accrue will be deferred by delays. I should add that FOGC accepted that the road has public benefit.

The environmental values of Patch 7 54 The Commissioner evinced evidence from Martine Scheltema, who is responsible for environmental management of several Main Roads WA projects, including the relevant part of the BORR. The following matters reflect Ms Scheltema's evidence: (a) Patch 7 is one of a number of portions of the road which contain category 1 western ringtail possum habitat. However, the density of western ringtail possums is not particularly high in Patch 7 compared with other category 1 areas within the development envelope; (b) the habitat in Patch 7 is a typical example of low density (less than two western ringtail possums per hectare) western ringtail possum habitat that is widespread in the area; (c) the region's critically important western ringtail possum habitat values are principally associated with retained habitat to the west and north of the development envelope which will not be impacted by the construction of the road; and (d) there are multiple populations of western ringtail possums in Western Australia across three very large management zones. 55 Ms Scheltema stated that other environmental values in Patch 7 relating to black cockatoos, black-stripe minnows and banksia woodland threatened ecological communities, are not unique to Patch 7. For example, she stated that there are 8014 hectares of potential foraging habitat for the black cockatoos within 12 km of the BORR (south) and only one tree identified to have suitable nest hollows in Patch 7. Ms Scheltema stated that there are 6097 hectares of potential habitat for the black-stripe minnow within 5 km of BORR (south). 56 Ms Scheltema stated that other threatened ecological communities, being the tuart woodlands and forests threatened ecological communities, do not occur in Patch 7. Ms Scheltema also observed that she had considered the tree surveys (which I assume to be those provided by FOGC) and did not consider that they altered the assessments undertaken on behalf of the Commissioner in identifying habitat trees.

Avoidance and mitigation strategies for western ringtail possums 57 Ms Scheltema also gave evidence that a range of measures are taken to avoid death or injury to western ringtail possums. Those measures include the management actions described in the fauna management plan, and are supplemented by a number of other clearing protocols, such as pre-clearance surveys, nocturnal searches the night before clearance, and identifying each morning the location of collared and non-collared western ringtail possums. 58 Ms Scheltema stated that only one death of a western ringtail possum has been recorded since category 1 clearing commenced, and none since August 2022. In Ms Scheltema's opinion, in light of radio-collaring monitoring data and the mitigation actions in place, it is most unlikely that any other western ringtail possums have been killed or injured as a result of works for the southern section of the BORR.

Avoidance and mitigation strategies for black-stripe minnows and black cockatoos 59 Ms Scheltema gave evidence that although Five Mile Brook contains potential habitat for the black-stripe minnow, no black-stripe minnow were recorded from Five Mile Brook within Patch 7. 60 She stated that in any event, a range of management actions are undertaken to mitigate direct and indirect impacts to the black-stripe minnow. These include (as already noted) that initial earthworks in black-strip minnow habitat will occur during the months of October to April or when wetlands are dry. They also include the maintenance of habitat connectivity and hydrology. 61 As to black cockatoos, any clearing and disturbance of its habitat will be carefully managed throughout construction to minimise impact and mitigation steps will include visual inspection of tree hollows, the blocking of hollows, pre-clearance fauna assessments and the gentle 'bumping' of trees.

Rehabilitation of Patch 7 62 The Commissioner also relies on evidence from Ms Scheltema to the effect that it is very likely that any habitat affected by these actions can be re-established. Her relevant evidence was: [Main Roads WA] only proposes to clear approximately 13 ha of the 60.9 ha of Western Ringtail Possum habitat within the Sunbury Outer Ring Road Southern Section this year. This represents only 1.5km (approximately) of the 10 km road length to be constructed. In my opinion, I consider it very likely that this habitat can be re-established. I am aware of this through the rehabilitation work undertaken by MRWA in the nearby Ludlow State Forest/Tuart National Park. MRWA environmental personnel have observed Western Ringtail Possums in rehabilitated road reserves. MRWA environmental personnel have also observed Western Ringtail Possums and Black Cockatoos in other areas rehabilitated by MRWA.

Consideration - balance of convenience 63 In my view, in all the circumstances the balance of convenience weighs heavily against the grant of the relief sought. 64 On the evidence, there is a narrow window for the proposed clearing to proceed. If it does not proceed, there will be significant delays to the project with concomitant substantial costs, in the many millions of dollars. The significant public benefit of the BORR will be deferred if the works are delayed, and potentially by six months. Other category 1 clearing is already underway and FOGC has not sought to prevent those works pending the hearing of the appeal. The injunction relates to a relatively small area (less than 1 hectare) in the scheme of the BORR and there is no evidence (apart from that relating to the death of one possum - although I was told by counsel for the Minister that it had two pouched young) to suggest that the many mitigation steps in place have not been and will not be effective to protect the relevant threatened species in the affected area. Indeed it seems the works are being undertaken having particular regard to the protection of the black-stripe minnow and the desirability of works being undertaken when it is dormant. Further, there is evidence that any habitat affected by the proposed clearing can be re-established and rehabilitated, if FOGC were ultimately to succeed in its appeal. That will not see the current status of the area returned, but it is a course that is not to be ignored, particularly where there was also evidence of populations returning to rehabilitated land elsewhere. 65 Finally, I was informed that an alternative route for the road had already been examined and discarded as part of the assessment process, and that the alternative route would also have affected wetlands, rivers and watercourses. So, the problem is not one that could feasibly be solved by a simple diversion.

Ground 1 - legal error by deferral of evaluative task - management plans 66 The primary judge found that the nature of the conditions as to the management plans did not provide an arguable basis for the claim that the Minister deferred part or all of the required evaluation to the later point in time when the content of the plans was to be considered: at [13], and relying on reasons expressed in the injunction judgment at [53]-[57]. 67 However, his Honour had observed in the injunction judgment that one claim was arguable, relating to the aspect of condition 8 of the Approval which required the Commissioner to specify to the Minister's satisfaction that the measures in the required fauna management plan would 'avoid, mitigate and manage impaction of the action on listed threatened species during clearance, construction and operation'. FOGC argued that consideration as to whether such a plan could 'avoid, mitigate and manage' such 'impaction' was a matter that formed part of the evaluative task to be undertaken in considering whether to approve the controlled action. Further, it was argued that it could be inferred from the form of the condition that no such evaluation had been undertaken: referred to in the primary judgment at [14]. 68 By the time of the primary judgment his Honour's view had changed, primarily because in the interim the delegate of the Minister had published their reasons for the Approval, and his Honour considered that based on those reasons it was apparent that the delegate had regard to proposed management measures and had made amendments to them, thereby indicating consideration of what was to be delivered by the fauna management plan: primary judgement at [16]. 69 Before me, FOGC emphasised his Honour's earlier reference to the ground being 'arguable' and relied on that in support of its submission that the first appeal ground has merit. However, that submission must be viewed against his Honour's retreat from that view, as exposed by his rejection of the ground at trial: primary judgment at [16], [19]. 70 Be that as it may, and whilst my impression is that this ground has limited prospects of success, it is not unarguable. In saying it has limited prospects of success I take into account that even in the injunction judgment, the application for an interlocutory injunction was dismissed on this basis.

Ground 2 - legal error by deferral of evaluative task - offset policy 71 As to ground 2, his Honour concluded that the conditions imposed by the Approval relating to the Commissioner's offset strategy did not involve the deferral of the substantive task. There was no dispute in the Court below that while offsets are not mentioned in the EPBC Act, the Minister (or her delegate) could consider any offset proposal as part of the approval decision. The Minister submitted that consistently with that statutory framework and the Commonwealth's offsets policy, the delegate considered the Commissioner's offset strategy as part of her decision whether to approve the controlled action. 72 The difference between the parties distils, on the submissions before me, to competing submissions as to the level of detail that had been included in the offset strategy, whether alleged inadequacies could be remedied by mere adjustments, and whether the amount of work left to be undertaken by the Commissioner with respect to the offset strategy had the consequence that any critical evaluation of it could not be undertaken until after the Approval decision. 73 During the hearing, counsel for the Minister took me to a list of offset sites referred to in the offset strategy that included sites that were in the process of being acquired, noting this was indicative of a level of certainty as to the offset strategy before the delegate. By contrast, FOGC refers to the tension between mere adjustments that might be made and fundamental criticism of the scientific foundation for the proposed offsets. 74 Having regard to these matters of substance, on the materials before me I cannot fairly conclude that ground 2 is not arguable, as the Minister contended.

Ground 3 - the construction of s 391 and the precautionary principle 75 As to ground 3, the appellant's argument sought to invoke and apply the reasoning of Moshinsky J in Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 at [33], to the effect that the command in s 391 of the EPBC Act was a requirement to 'consider' the precautionary principle in relation to each protected matter under the EPBC Act, being the familiar requirement in administrative law of active intellectual engagement. 76 This argument was rejected by the primary judge, who preferred the submissions of the Minister and the Commissioner to the effect that those provisions require the observance of a particular approach to the level of proof, particularly the degree of scientific certainty, that may be required before a risk of serious or irreversible environmental damage might be brought to account in the decision making process. Importantly, FOGC points to his Honour's statement (at [69]) that there is some tension between the reasoning in Bob Brown Foundation and that in other authorities such as State of Queensland (Department of Agriculture and Fisheries) v Humane Society International (Australia) Inc [2019] FCAFC 163; (2019) 272 FCR 310. 77 FOGC therefore points to some conflict in the limited number of authorities as to the application of the precautionary principle in the context of the EPBC Act in support of its submission that there are competing reasonable arguments, and so the ground must be assessed as having some prospect of success. It seems to me that even accepting that the circumstances in Bob Brown Foundation may be distinguishable, ground 3 cannot be dismissed lightly. 78 In summary, I am unable to conclude that the grounds of appeal have no or insufficient likelihood of success so as to justify, on that basis, dismissal of the application.

Whether deprived of benefit of appeal rights 79 The question then is to what extent refusal of the application for injunctive relief will render the appeal nugatory or leave it significantly impaired. 80 It is to be recalled that FOGC's application for judicial review did not challenge the Approval relating only to Patch 7. The application challenged the Approval permitting the construction of the southern section of the BORR. 81 However, the proposed clearing due to commence on 17 April 2023 involves less than a hectare, which represents approximately 1.6% of the 60.9 hectares of western ringtail possum habitat that may be cleared under the Approval and approximately 2.2% of the approximately 45 hectares of category 1 clearing area that may be cleared under the Approval. Although the terms of the interlocutory application refer to the whole of Patch 7, FOGC's submissions (at para 10) make it clear that it is the proposed clearing that it seeks to restrain. 82 Given the limited extent of the proposed clearing (which is the only clearing scheduled to occur on Patch 7 before the hearing of the appeal) and the mitigation measures in place, the Commissioner submits that refusal of the application for injunctive relief will neither render the appeal nugatory, nor lead to a sufficiently serious consequence for FOGC to justify depriving the Commissioner of the benefit of the determination by the primary judge of the issues after a final hearing at first instance. 83 Having considered the competing priorities, I accept the Commissioner's submission in this regard. It is too narrow an approach to refer only to Patch 7 - and indeed only the area the subject of the proposed clearing - in considering the appeal rights in issue. The Approval for the whole of the construction of the southern section of the BORR is in issue by the appeal and the proposed clearing affects only a very small portion of that, and in circumstances where damage caused by the proposed clearing is significantly mitigated by the steps referred to Ms Scheltema above, mitigation steps that are consistent with, and required by, the Approval. I do not suggest that there will be no affect at all on the area of the proposed clearing. I accept there will be an impact. However I also take into account that the evidence is that the area can be rehabilitated post clearing, and past experience has indicated that rehabilitation of such areas after clearing has been successful. 84 Having regard to the scheme of the Approval and the appeal as a whole, I do not consider FOGC's appeal rights will be significantly impaired by the specific proposed clearing. The appeal rights remain and can be pursued. To the extent there is any diminution of those appeal rights should the appeal succeed, any such diminution relates to a small area, damage will be mitigated, the risk to threatened species in the proposed clearing area is being carefully managed in accordance with the Approval and rehabilitation of the site will proceed. I am not persuaded in all of the circumstances that any such diminution can be considered significant impairment of appeal rights or an outcome that renders them nugatory. 85 Further, the impact on the area proposed to be cleared should be assessed having regard to the fact that clearing has already proceeded in other areas for the southern section of the BORR, including in category 1 habitat areas. That clearing, it may be assumed, has not been regarded by FOGC as rendering appeal rights nugatory.

Determination 86 Having regard to the principles, although I have assessed that the appeal grounds cannot be dismissed as unarguable and indeed may have some merit, the balance of convenience greatly favours refusal of the application, for the reasons I have given. There will be significant consequences for the Commissioner, who has adjudicated rights, if the injunction is granted. It has not been demonstrated that FOGC's appeal rights will be significantly impaired or rendered nugatory by refusal of the application. When I bring those matters into the balance, the application for the injunction is to be dismissed. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

Environmental Protection and Biodiversity Conservation Act 1999(Cth)

Environment Protection and Biodiversity Conservation Act 1999(Cth)ss 18, 67, 68, 130, 133, 134, 136, 391, Parts

At a glance

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Before

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Judgment (21 paragraphs)

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Legislation Cited (3)

Cases Cited (10)