Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : SAVE BEELIAR WETLANDS (INC) -v- JACOB [2015] WASC 482

Judicial review - Jurisdictional error - Proper construction of Environmental Protection Act 1986 (WA) - Whether EPA's published policies implied mandatory relevant considerations - Whether administrative procedures required EPA to consider its published policies - Whether failure to consider published policies without giving reasons is legal unreasonableness - Whether EPA failed to ask a required question

Environmental Impact Assessment (Part IV Division 1) Administrative Procedures 2002 (WA), cl 5, cl 6, cl 7, cl 9

Environmental Protection Act 1986 (WA), s 3, s 4A, s 5, s 15, s 26, s 27, s 28, s 29, s 30, s 31, s 37B, s 38, s 39A, s 40, s 44, s 45, s 100, s 101, s 106, s 107, s 108, s 109, s 110, s 122, s 123

First Appellant : Mr G T W Tannin SC & Mr C S Bydder

Second Appellant : Mr G T W Tannin SC & Mr C S Bydder

Third Appellant : Mr G T W Tannin SC & Mr C S Bydder

First Respondent : Mr M D Howard SC & Mr H H Jackson

First Appellant : State Solicitor for Western Australia

Second Appellant : State Solicitor for Western Australia

Third Appellant : State Solicitor for Western Australia

First Respondent : Castledine Gregory Law and Mediation

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

1 McLURE P: This is an appeal from the decision of the Chief Justice quashing the report and recommendation of the Environmental Protection Authority (EPA) relating to the third appellant's proposal to extend Roe Highway (the Assessment Report).

2 The Chief Justice (the primary judge) held that the EPA committed jurisdictional error by failing to take into account mandatory relevant considerations, being three EPA policies (the Policies) entitled:

(1) Environmental Offsets - Position Statement No 9 (Position Statement 9);

(2) Guidance for Assessment of Environmental Factors - Environmental Offsets - Biodiversity No 19 (Guidance Statement 19); and

(3) Environmental Protection Bulletin No 1 - Environmental Offsets - Biodiversity (EPA Bulletin 1).

3 The sole ground of appeal is that the primary judge erred in law in holding that the Policies were mandatory relevant considerations. I have concluded that the primary judge did err. The Policies are not mandatory relevant considerations.

4 The first respondent (Save Beeliar Wetlands (Inc)) seeks to uphold the primary judge's decision to quash the Assessment Report on the additional grounds that:

(1) the EPA was bound, but failed to give proper, genuine and realistic consideration to the 2002 Administrative Procedures, which included an obligation to consider the Policies as they were 'relevant environmental policies, standards and criteria';

(2) the Assessment Report was, in the circumstances, legally unreasonable in that, without a reason, it did not have regard to the Policies; and

(3) the primary judge should have upheld the first ground relied upon by the first respondent below being that, as a matter of statutory construction, the EPA was required (but failed) to ask itself whether the residual impacts of the proposal were such that it should not be implemented at all, before it considered whether it was appropriate to recommend the imposition of off-site, offset conditions.

5 Grounds 1 and 2 of the first respondent's contentions were not raised below. The appellants have no objection to them being raised for the first time in the appeal. For the reasons that follow, I would dismiss the contentions.

6 In April 2009, Main Roads of Western Australia (MRWA or the proponent) referred to the EPA a proposal to extend Roe Highway approximately 5 km from its current terminus at the Kwinana Freeway in Jandakot to Stock Road in Coolbellup (the Roe 8 extension proposal).

7 The proposed Roe 8 extension is largely located within a primary regional road reserve in the Metropolitan Region Scheme (MRS) that has been in existence since 1963. The road reservation runs between North Lake and Bibra Lake, which are within the Beeliar Regional Park. The Beeliar Regional Park is created around two chains of wetlands. This area's regional significant values have been recognised through its inclusion in System Six area M93 and Bush Forever site 244.

8 In 2003 the EPA, in Bulletin 1088, provided advice to the Minister on the key environmental values that would be affected if a proposed Roe 8 extension was to proceed. At that time there were no specific design details on the alignment for the Roe Highway extension. However, the EPA's conclusion was as follows:

The EPA concludes that any proposal for the construction of Roe Highway Stage 8 through the Beeliar Regional Park would be extremely difficult to be made environmentally acceptable. It is accepted that through design and construction there is the potential to manage and minimise the potential impacts to a certain extent. However the EPA is of the opinion that the overall impacts of construction within the road reserve, or any alignment through the Beeliar Regional Park in the vicinity of North Lake and Bibra Lake, would lead to the ecological values of the area as a whole being diminished in the long-term. Every effort should be made to avoid this.

9 Section 44 of the Environmental Protection Act 1986 (WA) (EPA Act) requires the EPA to report to the Minister for Environment (the Minister) on the outcome of its assessment of a proposal. In its recommendations in the Assessment Report, the EPA concluded that the Roe 8 extension proposal can be managed to meet its objectives subject to the implementation of recommended conditions, including offsets.

10 Under the heading 'Offsets' in the Assessment Report, the EPA states that:

The EPA's environmental objective ... is to counterbalance any significant residual environmental impacts or uncertainty through the application of offsets.

After all avoidance and minimisation actions have occurred, the following significant residual impacts remain:

• Clearing of:
  • 97.8 ha of remnant native vegetation;
  • 78 ha of foraging habitat for Carnaby's Cockatoo;
  • 73 ha of foraging habitat for Red-tailed Black Cockatoo;
  • 2.5 ha of potential Black Cockatoo nesting habitat;
  • 5.4 ha of Beeliar Regional Park;
  • 7 ha of Bush Forever site 244;
• Impacts to:
  • 6.8 ha of wetlands, including CCWs [Conservation Category Wetlands].
• Fragmentation of:
  • fauna habitat;
  • assemblages for priority fauna;
  • Swan Coastal Plain significant bird species habitat;
  • migratory birds and significant wetland bird species habitat.

CCWs, threatened fauna, priority fauna and conservation areas are all critical assets in accordance with Position Statement 9 ... Impacts to critical assets should be avoided and minimised as far as possible. The residual impacts are considered to be significant due to the importance of these assets (G68).

11 The Assessment Report notes that the Beeliar wetlands can be considered of international and national significance and that the wetlands likely to be impacted by the proposal include Horse Paddock and Roe and Melaleuca swamps, which are Conservation Category Wetlands (CCWs) on the Swan Coastal Plain. CCWs are high priority wetlands which support a high level of environmental attributes and functions (G39). The CCWs in the Beeliar wetlands form part of a contiguous chain of wetlands which are an important north-south migration path for birds (G70).

12 The Assessment Report also notes that, having taken all reasonable and practical measures to avoid and mitigate the potential impacts, there remained a significant residual impact on the key environmental factor of terrestrial fauna through habitat fragmentation and the loss of Black Cockatoo foraging habitat, hence an environmental offset was necessary (G64).

13 The expression 'critical assets' is referred to in Position Statement 9 in the following terms:

'Critical assets' represent the most important environmental assets in the State that must be fully protected and conserved for:

• the State to fulfil its statutory and policy requirements;
• the State to remain sustainable in the longer term; and
• the EPA to comply with its general principles for advice and decision-making ...

14 In the Assessment Report summary, the EPA listed and detailed the residual impacts referred to above and continued:

The EPA considers the above residual impacts to be significant and they would therefore need to be counterbalanced through the provision of environmental offsets.

15 Based on the proponent's offsets package and consistent with other offsets recommended in recent assessments, the EPA specified the offset components to be included in the recommended conditions. The EPA recommended that the Minister 'notes that the EPA has concluded that the proposal can be managed to meet the EPA's objectives, provided there is satisfactory implementation by the proponent of the recommended conditions'. The recommended conditions include requiring the proponent to offset the significant residual impacts to fauna, vegetation and wetlands (condition 12).

16 After defining 'critical assets' in the terms set out above, Position Statement 9, (published in January 2006) continued:

Therefore, when the issue is before the EPA, there is a presumption against recommending approval for proposals that are likely to have significant adverse impacts to 'critical assets'. The EPA does not consider it appropriate to validate or endorse the use of environmental offsets where projects are predicated to have significant impact to, [inter alia,] native vegetation, biodiversity, wetlands (including CCWs) (G310).

17 In another part of Position Statement 9 referring to critical assets, it is said that 'the State's most important environmental assets must be fully protected and conserved' and that 'significant adverse impacts to these assets should be avoided at all costs ' (G315).

18 However, key questions are identified in Position Statement 9 in 'tests' which include (at G314):

Test 3 - are residual environmental impacts expected to have a significant adverse impact on critical or high value assets?

Test 4 - do residual impacts remain significant but not so significant that the activity is likely to be found environmentally unacceptable (including in a cumulative impacts context)?

19 The approach in these two questions is in tension with the rigidity of the other quoted statements but is entirely consistent with the other policies. Guidance Statement 19 and EPA Bulletin 1, both published in September 2008 (the 2008 Policies), also refer to offsets in relation to critical assets.

20 Guidance Statement 19 states that where there are significant adverse impacts to critical assets, the EPA will assess the proposal through environmental impact assessment and that in providing its advice to the Minister, the EPA will adopt a presumption against recommending approval of proposals where significant adverse environmental impacts affect critical assets. It continues:

The 'significance' of a proposal or scheme is also likely to influence the extent and type of environmental offsets that may be required. The more significant the adverse residual impact is, the more likely a substantial offsets package will be necessary ... [It] should be remembered that it is the EPA's interpretation of 'significance' on a case-by-case basis that influences the decision to assess, the consideration of offsets and the EPA's advice to the Minister for the Environment (G334).

The EPA advises the Minister for the Environment on whether a project should be approved or not. In providing its advice to the Minister, the EPA adopts a presumption against recommending approval of proposed projects where significant adverse environmental impacts affect 'critical' assets. The EPA determines on a case-by-case basis how significant an impact is and this in turn influences the decision to assess the project through the environmental impact assessment process and its recommendations to the Minister including advice on the adequacy of proposed offsets (G371).

22 Section 4A of the EPA Act states that its object is to protect the environment of the State, having regard to the precautionary principle, the principle of intergenerational equity, the principle of the conservation of biological diversity and ecological integrity, principles relating to improved valuation, pricing and incentive mechanisms and the principle of waste minimisation. Particulars of each principle are provided.

23 Under s 15, it is the objective of the EPA to use its best endeavours to protect the environment and to prevent, control and abate pollution and environmental harm.

24 Part III of the EPA Act concerns the preparation by the EPA of draft environmental protection policies for approval by the Minister under s 31(d) of the EPA Act: s 26. A draft environmental protection policy approved under s 31(d) is defined as an 'approved policy': s 3(1).

25 In broad terms, the procedure for promulgating an approved policy is as follows. If the EPA considers it necessary or desirable for the protection of any portion of the environment or the prevention, control or abatement of pollution or environmental harm that an environmental protection policy be approved under s 31(d), it must prepare a draft of the environmental protection policy (s 26(1)(c)); the draft policy must be published in the Gazette (s 26(1)(d)); the EPA must make reasonable endeavours to consult with such public authorities and persons as appear to it to be likely to be affected by the draft policy (s 26(1)(e)); any person may make representations to the EPA on the draft policy (s 27); the EPA is required to consider any representations and views made or expressed to it (s 28(1)); the EPA may revise the draft policy and, inter alia, submit a copy of that draft policy, together with a report thereon, to the Minister (s 28(b) and s 28(c)); the Minister may appoint a committee of inquiry to hold a public inquiry into and report to the Minister on the draft policy (s 29); the Minister is required to make reasonable endeavours to consult such public authorities and persons as appear to the Minister to be likely affected by the draft policy (s 30(1)); after the Minister has received and considered a copy of the draft policy together with any report thereon by the EPA and any committee of inquiry, and after the Minister's mandatory consultations, the Minister is required by s 31 to either remit the draft policy to the EPA for reconsideration, refuse to approve the draft policy or approve the draft policy under s 31(d):

Approve the draft policy, with or without such amendments as the Minister thinks fit to make to the draft policy, by order setting out the draft policy in amended or unamended form, as the case requires.

26 The provisions of the EPA Act or an approved policy prevail to the extent of any inconsistency with a provision contained in, or ratified or approved by, any other written law: s 5.

27 Part IV of the Act deals with environmental impact assessments. The EPA Act differentiates between a 'strategic proposal' and a 'significant proposal'. A significant proposal means a proposal likely, if implemented, to have a significant effect on the environment: s 37B. Any person may refer a significant proposal to the EPA: s 38(1).

28 When a proposal is referred to the EPA under s 38, the EPA is to decide whether or not to assess the proposal: s 39A(1). Section 40 applies if the EPA assesses a proposal. The EPA may, for the purposes of assessing a proposal, require the proponent to undertake an environmental review and to report thereon to the EPA: s 40(2)(b). The EPA is required to determine the form, content, timing and procedure of any environmental review required to be undertaken under subs (2)(b): s 40(3).

(1) If the Authority assesses a proposal, it is to prepare a report on the outcome of its assessment of the proposal and give that report (the assessment report) to the Minister.

(2) The assessment report must set out -

(a) what the Authority considers to be the key environmental factors identified in the course of the assessment; and

(b) the Authority's recommendations as to whether or not the proposal may be implemented and, if it recommends that implementation be allowed, as to the conditions and procedures, if any, to which implementation should be subject.

(2a) The Authority may, if it thinks fit, include other information, advice and recommendations in the assessment report.

30 Under s 44(3), the Minister is required to cause the assessment report to be published and provide copies of it to any other minister appearing to him to be likely to be concerned in the outcome of the proposal, to each relevant decision-making authority (DMA) and to the proponent or other person who referred to the Minister the proposal to which the assessment report relates.

31 Section 45 sets out the procedure for deciding if a proposal may be implemented. After the Minister has caused a report to be published, he is required to consult with relevant DMAs and, if possible, agree with them on whether or not the proposal to which the report relates may be implemented and, if so, on what conditions and procedures: s 45(1).

32 If the relevant DMA is a minister and there is no agreement, the Minister must refer the matter or matters in dispute to the Governor, whose decision shall be final and without appeal: s 45(2). If the DMA is not a minister and there is no agreement, the Minister is to appoint an appeals committee to consider and report to him on the matters in dispute. In that event, s 106 - s 110 apply: s 45(3) and s 45(4).

33 Part VII of the EPA Act deals with appeals. Any DMA, responsible authority, proponent or other person that disagrees with, inter alia, the content of or any recommendation in the assessment report under s 44 may lodge with the Minister an appeal in writing setting out the grounds of the appeal: s 100(1). The EPA Act makes provision for the Minister to appoint an appeals committee to consider and report to him on the appeal: s 106(2).

34 When an appeal is lodged against the content of or any recommendation in an assessment report under s 44, the Minister may remit the proposal to the EPA for assessment, further assessment or reassessment or vary the EPA's recommendations by changing the implementation conditions: s 101(1)(d).

35 The EPA may from time to time draw up administrative procedures for the purposes of the EPA Act and in particular for the purpose of establishing the principles and practices of environmental impact assessment: s 122(1)(a). The Governor has the power to make regulations under s 123. However, there are no regulations relevant to the issues in this appeal.

36 The Environmental Impact Assessment (Part IV Division 1) Administrative Procedures 2002 (the Administrative Procedures) were made under s 122 and applied in this case.

37 Clause 5 refers to s 40 of the Act. The preface states that the EPA normally adopts one of five levels of assessment for assessing proposals and this sets the general form, content, timing and procedure. The levels of assessment include -

(b) Proposal Unlikely to be Environmentally Acceptable (PUEA);

38 On the subject of proposals unlikely to be environmentally acceptable, cl 5.2.1 provides:

When some proposals are referred to the EPA it will rapidly become evident during examination of the proposal that it cannot meet the EPA's environmental objectives. This level of assessment will apply to proposals that are clearly in contravention of established or applicable environmental policy, standards or procedures, could not be reasonably modified to meet the EPA's environmental objectives, or are proposed in a special environment area.

39 The level of assessment applied by the EPA to the Roe 8 extension proposal was public environmental review (PER). On that subject, cl 5.4 relevantly provides:

5.4.1 This level of assessment will typically be applied to proposals of local or regional significance that raise a number of significant environmental factors, some of which are considered complex and require detailed assessment to determine whether, and if so how, they can be managed. The EPA considers that such proposals should be subject to a formal public review period and the setting of environmental conditions under Part IV of the Act to ensure they are implemented and managed in an environmentally acceptable manner.

5.4.2 Where the EPA sets this level of assessment it will require the proponent to prepare an Environmental Scoping document setting out the environmental factors raised by the proposal and the proponent's intended environmental studies, in accordance with clause 6.1 of these procedures, if the proponent has not submitted one with the referral.

5.4.3 The proponent will then be required to prepare an environmental review document ... (PER) in accordance with the Environmental Scoping document agreed with the EPA, and the general requirements of clause 6.3 of these procedures.

5.4.4 When the EPA is satisfied the PER document has adequately addressed all of the environmental factors and studies identified in the Environmental Scoping document, the proponent will be required to release it for a public review period, normally between 4 and 8 weeks.

...

5.4.6 The [EPA] will assess the PER document, submissions, proponent's response to submissions, and obtain advice from any other persons it considers appropriate and submit its report to the Minister in accordance with section 44.

40 Clause 6.1.2 states what an environmental scoping document (ESD) must include. Under cl 6.1.4, the EPA is to advise the proponent on its acceptance of the ESD.

41 Further, a proponent is required to prepare a PER in accordance with the EPA's generic guidelines for form and content of environmental reviews, and the agreed ESD (cl 6.3.2). The proponent must ensure that a PER focuses on addressing the more significant environmental issues/factors including specified issues (cl 6.3.5).

42 The proponent is prohibited from publishing its PER without the approval of the EPA (cl 7.1). The proponent is required to submit a draft of a PER to the EPA for it to decide whether the document is suitable for public release and review (cl 7.2). Further, the EPA decides upon the acceptability of a PER for public release and review on the basis of, inter alia, whether the environmental issues/factors in the ESD had been adequately addressed (cl 7.4). The proponent is also required to provide to the EPA a written response to the issues raised during the public review of the PER (cl 9.2).

The [EPA] may consider information from one or more of the following sources in assessing the proposal -

...

(b) Environmental Scoping document;

(c) the environmental review document [ie the PER];

(d) issues raised in public submissions or meetings;

(e) reports from any public inquiry;

(f) advice from DMAs and relevant government agencies;

...

(i) expert advice commissioned by the [EPA];

(j) relevant environmental policies, standards and criteria; and

(k) the [EPA's] own investigations and expertise.

44 The steps and timing of the MRWA's Roe 8 extension proposal are as follows:

20 April 2009 - Receipt of proposal with preliminary environmental impact assessment;

13 May 2009 - Chairman of the EPA determined the level of assessment as PER;

27 October 2011 - EPA seeks from proponent a summary of issues and public submissions;

45 No attention was given below to the proponent's preliminary environmental impact assessment, ESD or PER in identifying the EPA's actual procedures and processes in this case or in determining whether the EPA took into account the Policies.

The primary judge's reasons - relevant considerations

46 The primary judge concluded that the subject matter, scope and purpose of the EPA Act compelled the conclusion that the EPA was bound to take into account the Policies as a condition of a valid exercise of the jurisdiction to assess and report to the Minister on the proposal for the Roe 8 extension. He relied on the following matters to reach that conclusion:

First, the process of environmental impact assessment for which provision is made in pt IV of the Act is to be undertaken by an independent expert body by reference to administrative procedures, assessment criteria and policies which are not specified in the Act.

Second, the EPA is specifically empowered by various provisions of the Act to develop and promulgate administrative procedures, assessment criteria and policies including, but not limited to, those policies which acquire the force of law if promulgated in accordance with the provisions of pt III of the Act.

Third, in those cases in which the EPA decides that the assessment should include public review, the express provisions of the Act require a transparent process of active engagement and interaction between the proponent, decision-making authorities, parties with a direct interest in the proposal, members of the public and the EPA. That process of active engagement would be facilitated by development of administrative procedures, assessment criteria and policies pursuant to the exercise of the specific powers conferred upon the EPA by the Act.

Fourth, at least in the case of a process of assessment which includes public review, the express provisions of the Act reveal a clear legislative intention that the procedures shall conform to the requirements of procedural fairness.

Fifth, the Act confers a general right of appeal upon any person in respect of the content or recommendations included within a report prepared by the EPA following an environmental impact assessment. The administrative procedures, assessment criteria and policies which the EPA is expressly authorised to promulgate would also greatly facilitate the appeals process [178] - [182].

47 The primary judge continued, stating that when the EPA exercised its power to publish administrative procedures, assessment criteria and policies relating to the process of environmental impact assessment, it was likely that people (including proponents, DMAs, appellants, appeals committees and advisers where relevant) will rely on them (1) in assessing whether the proposal is likely to have a significant effect on the environment; (2) in deciding whether or not to lodge an appeal; (3) in preparing an environmental review; (4) in making a decision whether or not to lodge a submission to the EPA; (5) in preparing and presenting a response to submissions; (6) in deciding whether to appeal; (7) in preparing and presenting reports to the Minister in respect of appeals [185].

48 According to the primary judge, if the EPA were not obliged to take its published policies into account, the persons relying on them are likely to be misled; the various steps in the process are all likely to miscarry; the requirements of procedural fairness are unlikely to be met because many of those engaged in the process will be proceeding on the basis of a false premise; and there would be a very real risk of differential treatment, inconsistency and idiosyncrasy [186].

49 It is accepted by all parties that the EPA's obligation in s 44 of the EPA Act is subject to judicial review. I infer that is because the EPA's assessment report, which must include its recommendations as to whether or not the proposal may be implemented, conditions the Minister's powers relating to the proposal.

50 A relevant consideration is one which the decision-maker is obliged to take into account in the course of reaching the decision or conduct under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39. The legislation imposing the obligation to decide (or in this case, report and recommend) may expressly identify particular matters that must be considered or the obligation to consider may arise by implication from the subject matter, scope and purpose of the legislation. Any obligation to take into account a relevant consideration relied on as giving rise to jurisdictional error must of necessity be a condition of the validity of the decision.

51 Thus, in order to constitute a jurisdictional error that entitles a court to quash an administrative decision, the consideration not taken into account must be (1) relevant, (2) mandatory and (3) result in invalidity.

52 In the absence of an express provision, the question whether the legislative intent is that invalidity should result from the failure to comply with an express or implied statutory condition gives rise to a contestable judgment: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 389.

53 The duty to take into account relevant considerations is confined to the decision-making process. It does not extend to the content of the reasons for the decision or recommendation, although the reasons are inevitably relied upon as evidence of a claim that the decision-maker failed to take into account a relevant consideration. However, as decision-makers who are required to give reasons are not obliged to canvass all matters or evidence that have been taken into account, the failure to refer to a relevant consideration in the reasons (or report) is necessary, but not determinative.

54 The express provisions of the EPA Act leave no room for an implication that the Policies, or any of them, are mandatory relevant considerations in the EPA's assessment of, and recommendations relating to, the Roe 8 extension proposal under s 44 of the EPA Act.

55 There are a number of aspects of the legislative scheme in the EPA Act compelling that conclusion. The first and most important is Pt III of the EPA Act relating to approved policies. Approved policies, as defined in the EPA Act, are express relevant considerations.

56 Part III of the EPA Act provides a lengthy, tortuous process involving all stakeholders, public and private, in the formulation of draft policies for the ultimate decision of the Minister. This is a reflection of the legislature's assessment of the high importance and sensitivity of the role and responsibility of the EPA. In that context, it is inconceivable that the legislature intended the EPA to have the power to make its own policies on the same matters (being those falling within the objectives specified in s 15) which it is then impliedly required to take into account in the performance of its duties under s 44 of the EPA Act.

57 The structure of the decision-making process in relation to proposals to which s 44 applies is also inconsistent with an implication that policies generated by the EPA outside the Pt III process are intended to be mandatory relevant considerations. An assessment report under s 44 is a long way short of any final decision on the proposal in issue. Of particular significance is the role of the Minister. After consultation and the disposition by him of any appeal under s 100 of the EPA Act, the Minister has to decide whether the proposal may be implemented, and if so, on what conditions or procedures. The inevitable delays, costs, prejudice and inconvenience associated with the statutory implication of an obligation on the EPA, as a condition of validity of the performance of its s 44 duties, to take into account its own policies, weighs strongly against it.

58 There are other statutory indications against an implication that the EPA is obliged to take into account its published policies. The express terms of s 44(2) of the EPA Act specify the matters the EPA is obliged to set out in its assessment report, which in turn identifies the relevant mandatory considerations that must inform its assessment. That counts against the implication of other mandatory considerations.

59 The nature and role of the EPA under s 44 of the EPA Act is also significant. It is an independent expert body whose task is to identify and assess matters within its area of expertise for the purpose of recommending whether or not a proposal may be implemented, and if so, on what conditions and procedures. The EPA, as the sole entity entrusted with the duty in s 44, is performing an expert evaluative and advisory function, not exercising a discretionary power.

60 Finally, in the absence of a direction from the Minister under s 43, the EPA is in sole control of the form, content, timing and procedure of any environmental review required by it under s 40(2)(b) of the EPA Act. That, in combination with s 122, is the source of EPA's powers to make the Administrative Procedures which provide very detailed guidance to proponents and other stakeholders (including the community) involved or interested in the process.

61 For these reasons, the Policies are not mandatory relevant considerations that the EPA is obliged to take into account in the performance of its duties under s 44 of the Act. They are permissive relevant considerations.

62 The first respondent contends the Administrative Procedures impose an obligation on the EPA to consider the Policies in the performance of its duties, relying on cl 9.4.1(j), set out above. This contention falls at the first hurdle. Clause 9.4.1(j) does not impose an obligation to consider the Policies. On its proper construction, cl 9.4.1 makes the Policies a permissive relevant consideration, not a mandatory relevant consideration. Contention 1 should be dismissed.

63 The first respondent contends the EPA's decision (its assessment and recommendations) was legally unreasonable because, without a reason, in carrying out the environmental impact assessment, it did not have regard to its Policies.

64 The first respondent does not rely on unreasonableness in outcome or contend that the EPA is bound to follow the Policies and its failure to do so was unreasonable. The first respondent's contention is that the decision-making process was legally unreasonable, leading to jurisdictional error, relying on Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28.

65 The first respondent also calls in aid decisions of the High Court identifying the advantages of policies as promoting 'values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike' and 'diminishing the importance of individual predilection' and 'the inconsistencies which might otherwise appear in a series of decisions': Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 [54], [68]. These remarks should not be taken out of context. They relate to unfettered or broad discretionary powers exercised by multiple different decision-makers (much like sentencing in criminal law). The EPA is a stand-alone, expert decision-maker performing a statutory duty under s 44.

66 Much judicial ink has been applied to the meaning of the plurality judgment (Hayne, Kiefel and Bell JJ) in Li. See in particular, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 [43] - [51]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 [50] - [62]; and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 [54] - [65]. Li itself and the other cases to which I refer concern the exercise of a statutory discretionary power. The implied statutory obligation to exercise a statutory discretionary power reasonably is a condition of validity of the exercise of the power: Li [63].

67 The head note in Li appears to accurately capture the position of the plurality, being that:

The legal standard of unreasonableness is not limited to a decision so unreasonable that no reasonable person could have arrived at it. The standard is addressed to whether the statutory power, on its true construction, has been abused. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

68 It is clear from the judgment of the plurality and of French CJ and Gageler J, that a discretionary decision infected by 'irrationality grounds' such as, inter alia, the failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, and serious irrationality in the sense used in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625, 643 and 648, is legally unreasonable. These are process-related examples of legal unreasonableness. Otherwise, unreasonableness in the Li sense is 'outcome' focused. That is, legal reasonableness provides the boundaries of the area within which a decision-maker has a genuinely free discretion: Li [66]. To determine the boundary, regard must be had to the scope, subject matter and purpose of the statutory discretionary power: Li [67].

69 Although s 44 of the EPA Act imposes a duty on the EPA not a statutory discretionary power, that may not be a complete answer, as explained by Gageler J in Li as follows:

[R]easonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty. The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed [92].

70 The proper course is to focus on the particular condition for which the first respondent contends. The complaint is not that the EPA failed to have regard to the Policies. The complaint as formulated in the ground is that 'without a reason' it did not have regard to its Policies. That is, in effect, a claim that it is an implied condition (of validity) of the exercise of the duty in s 44(2) that the EPA give reasons for why it did not have regard to its Policies. There can be no obligation to give an explanation about why it did not take into account something it was not obliged to.

71 Mindful of the obstacle presented by a conclusion that the Policies were not mandatory relevant considerations, the first respondent further developed its argument in oral submissions as follows. Its starting point is selective reliance on parts of Position Statement 9. In particular, the first respondent relies on the EPA's statement in Position Statement 9 that critical assets must be fully protected and conserved to fulfil the EPA's statutory and policy requirements (G67) and says the statutory requirements to which the EPA refers are those in s 4A and s 15 of the EPA Act (ts 19).

72 The first respondent's broader proposition is that when the EPA takes the view that there are some environmental assets which must be fully protected and conserved, it is making express what is required by s 4A and s 15 of the EPA Act.

73 The first respondent then identifies what it says are two presumptions in Position Statement 9, the first presumption being that there will not be approval at all where a proposal will have a significant residual impact on critical assets (ts 22) and second, a presumption against recommending approval for a proposal which has a significant residual impact on critical assets (ts 24). The second presumption was subsequently reframed in terms of a presumption against significant residual impacts on critical assets being counterbalanced by offsets (ts 39). Again, it is contended that the two presumptions reflect what necessarily results from s 4A and s 15, which is that critical assets must be fully protected and conserved.

74 It might be thought these submissions were intended to provide the basis for a claim that the outcome of the Assessment Report (the recommendation) was legally unreasonable, however that was expressly disavowed (ts 34). The ground is confined to unreasonableness of process, relying on the following: first, the history (Bulletin 1088) and the statement in the Assessment Report that Bulletin 1088 provides the overarching context for the environmental impact assessment of the Roe 8 extension proposal; second, what the EPA said to the world about critical assets by its adoption of the Policies (with particular focus on Position Statement 9); third, the two presumptions said to apply when there are significant residual impacts on critical assets; fourth, it follows that a reasonable decision-maker would either apply the presumptions or explain in the Assessment Report why it has not applied the presumptions.

75 These factors represent a mixture of what is said to have been publicly stated by the EPA and the objective accuracy or foundation for those statements. However, much of the argument is premised on a non-contextual construction of the EPA's publicly stated position in the Policies. Thus, we are driven to construe non-statutory documents that are not mandatory relevant considerations.

76 On a proper construction of the Policies as a whole, there is one presumption and that is against recommending approval of proposals where significant adverse environmental impacts affect critical assets. However, the clear take out message from the Policies as a whole is that the EPA will consider, on a case by case basis, whether the presumption has been rebutted by reference to the magnitude of the adverse impacts on critical assets that meet the threshold of 'significant' (that is, whether significant impacts are not so significant as to be environmentally unacceptable). Moreover, the assessment of the magnitude of the adverse impacts starts when determining the level of assessment and continues during the environmental impact assessment process.

77 Thus, the first respondent's submissions are erected upon a false premise. Moreover, there is no claim that the recommendation in the Assessment Report is inconsistent with or otherwise contravenes s 4A and s 15 of the EPA Act.

78 In the end, the first respondent's submissions come down to a claim that the EPA is obliged to give written reasons as to why it allegedly departed from its position in the Policies. Even if, contrary to my view, there was such a departure, I see no justification in the scope, subject matter and purpose of the EPA Act to impose an implied statutory obligation to give written reasons for not following Policies that are not mandatory relevant considerations.

79 In any event, this ground must fail on the facts. In determining whether the process was unreasonable (and, incidentally, whether the EPA took the Policies into account) it is necessary to have regard to the process provided for in the Administrative Procedures leading up to, and including, the Assessment Report. That is clear from the 2008 Policies. The EPA's consideration and assessment of the significance of adverse impacts on critical assets begins with the determination of the level of assessment and continues thereafter. In the preliminary environmental impact statement annexed to the Roe 8 extension proposal, the proponent refers to Position Statement 9 relating to 'critical assets', the EPA presumption against recommending approval for projects that are likely to have a significant adverse impact on critical assets and identifies that the proposed Roe 8 extension would have adverse impacts on four out of nine categories of critical assets (page 23).

80 Position Statement 9 and Guidance Statement 19 are expressly referred to in the EPA approved EDS, as are the critical assets identified in the preliminary environmental impact statement and the need for offsets after avoidance, minimisation, rectification and reduction (pages IV, 1 and 15).

81 The EPA approved PER identifies Position Statement 9 and Guidance Statement 19 as relevant policies (81- 82, 699); accepts that there would be significant unavoidable residual impacts, including on critical assets, requiring offsets, and details the strategies proposed to offset them (pages 697, 699, 701 - 719). By the time the EPA approved the PER, its prima facie position was to approve offsets. Such would be obvious to all following the process. The approved PER is available for public review (cl 8 of the Administrative Procedures). The approach taken in the EPA approved PER is consistent with the approach taken in the Assessment Report.

82 Having regard to the staged process provided for in the Administrative Procedures, which was followed in this case, and the EPA's approval of the proponent's EDS and PER which led directly to the Assessment Report, the first respondent has not established, for the purpose of its unreasonableness ground, that the process was unreasonable (or that the EPA failed to take into account the Policies). Contention 2 should be dismissed.

Contention 3 - failure to ask the required question

83 The first respondent contends that the EPA was required to ask itself whether the significant residual environmental impacts on critical assets were such that the Roe 8 extension proposal ought not to be implemented at all. Only after asking that question should the EPA turn to the next question, being whether the proposal should be subject to offset conditions.

84 The primary judge rejected this ground for the following reasons.

There are at least two reasons why this submission must be rejected. First, the extent of the jurisdiction conferred upon the EPA and the conditions to which the exercise of that jurisdiction is subject are fundamentally questions of statutory construction. There is nothing in any of the provisions of the Act to which the applicants refer in support of this ground of review capable of supporting the proposition that the consideration of environmental offsets imposes a particular condition upon the exercise of the EPA's jurisdiction. To the contrary, as I have already observed, the express conferral of a power to recommend that a proposal may be implemented subject to specified conditions and procedures necessarily connotes that there will be a class of proposals in respect of which the issue of environmental acceptability is inextricably tied up with issues with respect to the conditions and procedures which can and should be attached to implementation of the proposal.

Second, the proposition that all proposals could be rendered environmentally acceptable by the provision of environmental offsets is not supported by any expert evidence or by logical analysis.

85 The first respondent contended in its written submissions in the appeal that in construing s 44(2)(b) of the EPA Act it was necessary to have regard to the Policies. That proposition must be rejected. The proper construction of the EPA Act cannot be informed by a policy formulated by the EPA after the commencement of the EPA Act or at all. There is nothing in the text, context or purpose of s 44(2)(b) that mandates that, or indeed any other, approach to the performance by the EPA of its assessment and recommendation duties.

86 Senior counsel for the first respondent accepted at the hearing that the two-step test for which it contends in its written submissions is not appropriate for the task in s 44(2)(b), it being more consistent with an intuitive synthesis approach (ts 44). The first respondent's oral submissions came down to the following propositions. First, s 4A and s 15 of the EPA Act provide the context for the construction of s 44. Second, the facts and circumstances of a particular proposal cannot inform the proper construction of s 44(2)(b) but can inform the evaluative exercise in the application of the statutory duty. Third, there will be some proposals that cannot be implemented, irrespective of offsets. Fourth, the EPA failed to ask the correct question in the evaluative exercise, being whether the critical assets could be fully protected and conserved if the Roe 8 extension proposal was implemented. It was accepted that if the court concluded that the EPA had asked and answered that question, this contention must fail.

87 The first respondent claims the EPA failed to answer that question, relying on the primary judge's conclusion (at [65], [66], [192], [218]) that the Assessment Report assumes that the Roe 8 extension proposal was going to be implemented. This alleged assumption was the basis on which the primary judge concluded that the EPA had failed to take into account the Policies. However, as previously noted, the assumption is based upon an examination of the Assessment Report in isolation from the lengthy process and procedures which led up to it.

88 Further, the first respondent identifies the relevant question by reference to its erroneous construction of part of Position Statement 9, without reference to all the relevant context, including the 2008 Policies. This is not the correct question. Based on the Policies as a whole, the correct question, which the EPA answered, is whether the significant residual adverse impacts on critical assets are so significant as to be environmentally unacceptable. In any event, the Policies are not mandatory relevant considerations and cannot dictate the correct question. I would dismiss contention 3.

89 The appeal should be upheld, the orders made by the Chief Justice set aside and in lieu thereof the respondents' application dismissed. The parties should be heard in relation to costs.

91 NEWNES JA: I agree with McLure P that the appeal should be upheld. I agree with her Honour that the matters set out in [55] - [60] of her reasons lead to the conclusion that none of the Policies are mandatory relevant considerations. I agree with McLure P that the notice of contention should be dismissed for the reasons her Honour gives.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : JACOB -v- SAVE BEELIAR WETLANDS (INC) [2016] WASCA 126 (S)

BETWEEN : THE HON ALBERT JACOB MLA, MINISTER FOR ENVIRONMENT

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : SAVE BEELIAR WETLANDS (INC) -v- JACOB [2015] WASC 482

Costs - Public interest litigation - Appeal against decision that Environmental Protection Authority (EPA) had committed jurisdictional error - Environmental assessment of proposal to extend Roe Highway - Whether EPA policies were mandatory relevant considerations in assessment - Appeal allowed - Whether costs order should be made - First respondent not-for-profit organisation - Personal benefit to members - Relevance of litigation to future administration of Act

Respondents to pay first and second appellants' costs of proceedings at first instance

First respondent to pay the first and second appellants' costs of appeal

First respondent to pay third appellant's costs of application for urgent appeal order

First Appellant : State Solicitor for Western Australia

Second Appellant : State Solicitor for Western Australia

Third Appellant : State Solicitor for Western Australia

First Respondent : Castledine Gregory Law and Mediation

Second Respondent : Castledine Gregory Law and Mediation

Attrill v Richmond River Shire Council (1995) 38 NSWLR 545

Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211

Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Anor [1999] WASCA 55

Commissioner of Taxation v B & G Plant Hire Pty Ltd [1994] FCA 1257; (1994) 52 FCR 257

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S)

Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229

South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 154 ALR 411

South-West Forests Defence Foundation (Inc) v Lands and Forest Commission (No 2) (1995) 86 LGERA 382

The State of Western Australia v Collard [2015] WASCA 86

William Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975

1 McLURE P: I am in the minority on the issue of costs. In my opinion there should be no order for the payment of the costs of the application or the appeal. As the background is detailed by the majority, I can briefly state my reasons.

2 Order 66 r 1 of the Rules of the Supreme Court 1971 (WA) give this court a discretion to award costs, which discretion is confined solely by reference to the purpose and objective of the power. The rule (of practice not law) in civil proceedings is that, in the absence of special circumstances, costs should follow the event: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. There are special circumstances in this case.

3 The sole objective and purpose of the litigation was to challenge the legality and thus validity of the EPA's recommendation in its Assessment Report made under s 44 of the Environmental Protection Act 1986 (WA) (EPA Act) that the Roe 8 extension proposal could proceed (subject to the implementation of recommended conditions) even though it would result in significant residual impacts to 'critical assets'. The expression critical assets is defined in the Assessment Report as the most important environmental assets in Western Australia. By any measure, the litigation involved very significant issues of general public interest. Those public interests are not confined, geographically or otherwise.

4 It was not the respondents' case that the EPA's recommendation itself was beyond power. The focus of the challenge was on process and procedural errors. The only reasonably arguable outcome of the litigation was that the EPA would be required to reconsider the Roe 8 extension proposal. That relief would have no direct operative or practical effect on either respondent. It is proper to characterise the proceedings as public interest litigation. The nature and extent of the public interests in this case place it at the high end of the scale of litigation of that character.

5 If motivation is relevant (contra Kirby J in Oshlack), I accept the submission that the respondents' primary motivation for bringing the proceedings was the acknowledged damage to the State's critical environmental assets. The physical proximity of the second respondent and a number of members of the first respondent to the proposed Roe 8 extension is clearly linked to the requirement to establish standing.

6 Further, the litigation raised wide ranging significant issues going to the interpretation and administration of the EPA Act and its Administrative Procedures, the resolution of which has contributed to the

proper understanding of the relevant law and practice. That is of broad benefit to the government parties, particularly those responsible for the administration of the legislative framework.

7 Finally, it is significant that the 'hooks' on which the challenge was based stem from ambiguity in the purpose and content of policies generated by the EPA and the EPA's departure from its earlier position in Bulletin 1088.

8 BUSS & NEWNES JJA: On 15 July 2016, this court allowed an appeal from a decision of Martin CJ in which his Honour had found that in assessing the third appellant's proposal to extend the Roe Highway, the Environmental Protection Authority (EPA) had committed jurisdictional error by failing to take into account three EPA policies that were mandatory relevant considerations under the Environmental Protection Act 1986 (WA) (the Act). His Honour made orders quashing the Assessment Report of the EPA and the decision of the Minister for Environment (the Minister) that the third appellant's proposal may be implemented.

9 We concluded that the policies were not mandatory relevant considerations and set aside his Honour's orders.

10 An issue has now arisen as to the costs of the proceedings before the primary judge and of the appeal. The parties have each provided written submissions on the issue, which is to be determined on the papers.

11 For present purposes the relevant background can be sufficiently summarised as follows.

12 In April 2009, the third appellant referred to the EPA a proposal to extend Roe Highway by approximately 5 km from its current terminus at the Kwinana Freeway in Jandakot to Stock Road in Coolbellup (the Roe 8 proposal). Section 44 of the Act required the EPA to report to the Minister on the outcome of its assessment of a proposal.

13 The proposed extension of the Roe Highway is largely located within a primary regional road reserve in the Metropolitan Region Scheme that has been in existence since 1963. The road reservation runs between North Lake and Bibra Lake, which are within the Beeliar Regional Park. The Beeliar Regional Park is created around two chains of wetlands.

14 In its Assessment Report, the EPA noted that, after taking all reasonable and practical measures to avoid and minimise the potential impacts of the proposal, there remained significant residual impacts, so that environmental offsets were necessary. The residual impacts identified included impacts to Conservation Category Wetlands (CCWs) in the Beeliar Regional Park. It noted that CCWs (among other things) were a 'critical asset' in accordance with the EPA's Position Statement 9.

15 The EPA concluded that the Roe 8 proposal could be managed to meet the EPA's objectives subject to the implementation of recommended conditions, including environmental offsets.

16 In reliance upon the EPA's Assessment Report, the Minister decided to allow the Roe 8 proposal to be implemented, subject to conditions that he specified.

17 The first respondent is an incorporated association which has, as its primary objective, 'to engage in political, community, legal and other processes to protect the wetlands' through which the proposed extension in the Roe 8 proposal would be constructed. It is opposed to the Roe 8 proposal. The first respondent has 100 members, of whom 31 live in suburbs adjoining what is described as the 'development envelope' of the Roe 8 proposal. The second respondent's property is located some 20 - 25 m from the boundary of the development envelope.

18 The respondents commenced proceedings challenging the validity of the decision of the EPA and the decision of the Minister that the Roe 8 proposal may be implemented. They sought to have the Assessment Report and the decision of the Minister quashed.

19 The respondents contended, among other things, that the EPA had committed jurisdictional error by failing to take into account mandatory relevant considerations, being three EPA policies: Position Statement 9; Guidance Statement 19; and EPA Bulletin No 1. Position Statement 9 stated that there was a presumption against recommending approval for proposals that were likely to have significant adverse impacts 'to critical assets'. It also stated that the EPA did not 'consider it appropriate to validate or endorse the use of environmental offsets where projects are predicted to have significant adverse impacts to ... wetlands [including CCWs].' Guidance Statement 19 stated that the EPA would adopt a presumption against recommending approval of proposals or schemes where significant adverse environmental impacts affect critical assets. EPA Bulletin No 1 was to similar effect.

20 The primary judge found that, whilst the Act did not expressly require those policies to be considered, on its proper construction the EPA was bound to take them into account as a condition of a valid exercise of the jurisdiction to assess and report to the Minister on the proposal. The primary judge granted the substantive relief sought by the respondents and ordered the first and second appellants to pay 75% of the respondents' costs of the proceedings, to be taxed if not agreed.

21 On an appeal by the appellants, this court came to the contrary view, concluding that the express provisions of the Act left no room for an implication that any of the policies were a mandatory relevant consideration. McLure P (with whom we agreed) considered that, most significantly, pt III of the Act made provision for the formulation by the EPA of policies to be approved by the Minister following a lengthy process of consultation with all stakeholders. The approved policies were express relevant considerations in the EPA's assessment and recommendations under s 44 of the Act. It could not have been intended that the EPA would have the power to make its own policies which it was then impliedly required to take into account in the performance of its duties under s 44 of the Act [55] - [56]. The structure of the decision-making process in relation to proposals to which s 44 applied was also inconsistent with an implication that policies generated by the EPA outside that process were intended to be mandatory relevant considerations [57].

22 The first respondent had also filed a notice of contention seeking to uphold the decision of the primary judge on grounds not relied upon by his Honour. The notice of contention was dismissed.

23 The first and second appellants seek orders that:

1. the respondents pay their costs of the proceedings at first instance; and
2. the first respondent pay their costs of the appeal.

24 The third appellant seeks an order that the first respondent pay his costs of an urgent appeal order application.

25 The respondents oppose any order for costs being made.

26 The respondents contended there were special circumstances in this case justifying a departure from the general rule that a successful party is entitled to its costs. Put shortly, the respondents contended that the proceedings involved what is described as 'public interest litigation'. The respondents argued there should be no order as to costs. The circumstances they alleged supported that contention were as follows.

27 First, their case was not frivolous or lacking in substance, as demonstrated by their success at first instance, and it raised complex issues.

28 Second, the respondents stood to derive no personal, private or financial gain from the proceedings. Their primary motivation was a concern for environmental protection and the likely effect of the proposal to extend the Roe Highway on the Beeliar Regional Park's environmental, biodiversity, scenic and recreational values. The proceedings were concerned with the enforcement of legislation enacted for the public benefit.

29 Third, the proceedings had implications for the broader community and there had been widespread interest by the public in the outcome of the litigation. The implications for the community included the protection of the environment within the State and the correct procedures for environmental impact assessment in Western Australia. The decision at first instance had led to an independent review of policies and guidelines for environmental impact assessment under the Act.

30 Fourth, the action, if successful, would have clarified the requirements for conducting an environmental impact assessment under the Act for anyone referring or commenting on a proposal.

31 Fifth, the first respondent was a not-for-profit organisation and had no economic incentive to commence the proceedings.

32 Sixth, the proceedings raised significant and novel issues of general importance as to the interpretation and administration of the Act, namely, whether policies (apart from pt III policies) developed by the EPA are mandatory relevant considerations.

33 The respondents further submitted that they had brought the proceedings to advance a legitimate public interest, and the proceedings had contributed to a proper understanding of the law regarding environmental impact assessments, so that the costs should properly be regarded as incidental to the proper exercise of public administration.

34 The appellants submitted, first, that there were private interests involved on the respondents' side. Of the 100 paid members of the first respondent, 31 lived in suburbs adjoining the development envelope of the Roe 8 proposal and the second respondent's property was located some 20 - 25 m from the boundary of the development envelope. Second, whether something is in the public interest is to be determined by an examination of the legal issues or contentions involved, not by whether members of the public are interested in the outcome. And even if it were accepted that the respondents sought to advance the public interest, that of itself is not sufficient. Third, nor is it sufficient that a decision assisted to some degree in public administration. Many decisions of the court have that effect. In this instance, the issue was not one of general importance for the administration of the Act, but involved simply an orthodox question of statutory construction relating to policies that had ceased to operate before the proceedings were commenced. Fourth, the respondents had been wholly unsuccessful in the appeal.

35 The appellants submitted that when all the relevant factors are taken into account they do not justify a departure from the usual order as to costs.

36 The basis of the general principle that the successful party will be entitled to an order for its costs, enshrined in O 66 r 1 of the Rules of the Supreme Court 1971 (WA) (see also r 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA)), was explained by McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72:

The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation [67].

37 Whether the circumstances of a case falling under the general rubric of 'public interest litigation' justify a departure from that principle involves a balancing exercise by the court. That exercise requires attention to be focused on the particular circumstances of the case said to justify such a departure. Simply to describe a case as 'public interest litigation' serves no purpose. As Black CJ and French J (as his Honour then was) observed in Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229:

To say of a proceeding that it is brought 'in the public interest' does not of itself expose the basis upon which the discretion to award or not award costs should be exercised [19].

38 It is also necessary that great care be taken to ensure that such a concept does not become an umbrella for the exercise of the discretion as to costs in an 'unprincipled, haphazard and unjudicial manner'; the denial of costs to a successful litigant upon the ground that the litigation bears a public interest character should be a rarity: Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Anor [1999] WASCA 55 [11].

39 The circumstances that will justify a departure from the usual order as to costs on the ground that the proceedings were in the public interest are not susceptible of comprehensive description. Each case will turn on its own facts. It will not, however, be sufficient simply that the proceedings were brought otherwise than for the personal or financial benefit of the plaintiff - although, on the other hand, where the plaintiff stood to gain significant private benefit from the litigation that will ordinarily weigh heavily against departing from the usual rule as to costs: The State of Western Australia v Collard [2015] WASCA 86 [46]. Nor will it be sufficient that the case raised for the first time the meaning or operation of a legislative provision in which there was a public interest in the outcome, or that it resolved a conflicting line of authority, or that it otherwise had a wider legal importance than it has to the individual litigants, as that is an inherent feature of common law litigation: Oshlack [75]; William Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975; Collard [32]. And whether litigation bears a public interest character is not determined by the degree of interest in it shown by members of the public but objectively by the extent to which it serves the public interest.

40 As this court observed in Collard (at [38]), there are cases where the court has departed from the usual order as to costs in litigation which has involved the proper construction of statutory provisions of significant public import on the basis that the proceedings were 'public interest' litigation. But the exceptional nature of such an outcome has been repeatedly emphasised. A feature in some of the cases has been that the successful party denied an order for costs derived a significant benefit from the litigation in the clarification of a statutory provision of ongoing importance to its regulatory or other public functions.

41 Thus, in Commissioner of Taxation v B & G Plant Hire Pty Ltd [1994] FCA 1257; (1994) 52 FCR 257, the Commissioner had applied to set aside a deed of arrangement which purported to bind the creditors of the first respondent to accepting 40 cents in the dollar. The Commissioner contended that the debt owing in respect of tax was granted priority by s 221P of the Income Tax Assessment Act 1936 (Cth) and thus stood out of the arrangement. The Commissioner was successful but no order as to costs was made, the court saying simply that the case was 'in the nature of a test case. Important questions arose concerning both the Corporate Law Reform Act and the Tax Amendment Act.'

42 In Attrill v Richmond River Shire Council (1995) 38 NSWLR 545, the appellants had brought a claim against the respondent for damage caused by flooding. A separate trial was ordered on, relevantly, whether s 582A of the Local Government Act 1919 (NSW) was a complete defence to the claim for damages. Section 582A provided that a council was not liable for any act or omission in good faith in relation to the likelihood or extent of flooding of any land. The respondent was successful at first instance on this issue, and an appeal by the appellants against that decision was dismissed. On costs, by a majority (Kirby P and Clarke JA, Powell JA dissenting) the court concluded that there should be no order as to the costs of the appeal, the issue being one of importance to local government, there having been a conflict of authority on the proper construction of s 582A, and its determination being in the public interest (556).

43 In Ruddock v Vadarlis (No 2), the Victorian Council of Civil Liberties (VCCL) and Mr Vadarlis had commenced proceedings against the Minister for Immigration and Multicultural Affairs, the Commonwealth and others, seeking habeas corpus and mandamus to compel the release and delivery into Australia of a group of non-citizens said to be detained on a vessel, MV Tampa, off the coast of Christmas Island. The primary judge made the orders sought but was reversed on appeal. The Full Federal Court, by a majority (Black CJ and French J, Beaumont J dissenting), concluded that there should be no order as to costs at first instance or on the appeal. The majority described it as 'a most unusual case', involving 'matters of high public importance and rais[ing] questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights' [29]. On the question of costs, they took into account that the case raised novel and important questions of law concerning the alleged deprivation of liberty of the individual, the executive power of the Commonwealth, the operation of the Migration Act 1958 (Cth), and Australia's obligations under international law (matters on which they noted that judicial opinion was divided), and that there had been no financial gain for the VCCL or Mr Vadarlis in bringing the proceedings [28].

44 In Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211, the applicant challenged the validity of a decision of the Federal Minister to approve dredging of Port Phillip Bay and the Yarra River in Victoria, contending, amongst other things, that the environmental impact assessment did not adequately assess the relevant impacts of the project or provide enough information for the Federal Minister to make an informed decision. The challenge failed. The applicant represented the interests of over 65 community and environment groups and qualified for the express conferral of standing under s 487(3) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to bring such proceedings. Heerey J made no order as to costs, on the basis that the matter was of high public concern, the application raised novel questions of general importance as to the approval process under the legislation, and there was a public interest in the approval decision and whether it had been reached according to law.

45 But as we have said, such cases are exceptional, an outcome consistent with the view of the Full Court in Buddhist Society of Western Australia.

46 In this jurisdiction, in South-West Forests Defence Foundation (Inc) v Lands and Forest Commission (No 2) (1995) 86 LGERA 382, the appellant, in reliance upon the Act and the Conservation and Land Management Act 1984 (WA), had sought orders nisi for writs of certiorari and prohibition to quash decisions of the first respondent relating to an amendment to a regional forest management plan and to prohibit the respondents from giving effect to the plan. The application failed at first instance and an appeal against that decision was dismissed. On costs, the court rejected a submission by the appellant that the court was justified in departing from the usual order as to costs on the ground that important legal questions were raised for determination in the public interest. It held there were no special circumstances which justified any departure from the usual order as to costs.

47 A similar approach was taken in Buddhist Society of Western Australia, where the applicant had applied for an order nisi for a writ of prohibition in respect of what was said to be a decision which it anticipated the first respondent would make to grant an extractive industries licence to the second respondent. The application was dismissed by the Full Court. The applicant opposed a costs order being made against it on the ground that the proceedings were 'public interest litigation'. That submission was rejected.

48 In Roe v The Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 (S), however, this court, by a majority (Martin CJ, Murphy JA; Buss JA dissenting), concluded that the court should depart from the usual order as to costs. In that case, the court dismissed two applications by the applicant challenging decisions by the Director General of the Department of Environment and Conservation to grant permits to Woodside Energy Ltd and to the Commissioner of Main Roads to clear native vegetation in the Kimberley region. The majority considered that, in combination, the following circumstances in those proceedings justified a departure from the usual order as to costs, namely: the protection of the environment was a matter of public interest; the proceedings assisted to clarify issues of importance under the Act; the applicant had an arguable case; the applicant was asserting a public interest without prospect of personal gain or advantage; and there was a special relationship between Aboriginal people (of whom the applicant was one) and their land. No order as to costs was made.

49 Having regard to all of the relevant circumstances, we are not persuaded that this is one of those exceptional cases where the circumstances justify a departure from the usual order as to costs. There are several factors in particular that weigh against such a departure.

50 There was, on the respondents' side, a significant element of private benefit involved. As the appellants have pointed out, almost one-third of the paid members of the first respondent live in suburbs adjoining the development envelope of the Roe 8 proposal and the second respondent's property is located some 20 - 25 m from the boundary of the development envelope. In an affidavit in support of the application to quash the EPA's recommendation, the second respondent explained that her reason for opposing the Roe 8 proposal was the loss of her enjoyment of the wetlands, and the effect it may have on her health and well-being and the value of her house. It may be inferred that some at least of the 31 members of the first respondent living in adjacent suburbs were motivated not only by general concerns about the environmental impact of the Roe 8 proposal on the wetlands but also by the potential loss of their personal amenity. While the proceedings could not finally determine whether the Roe 8 proposal went ahead, the respondents stood to gain at least the benefit of a reconsideration of the environmental approval that had opened the way for it to proceed.

51 The private benefit involved went substantially beyond what was necessary for the respondents to establish as a sufficient interest to bring the proceedings.

52 It is also not evident that the point in issue in the proceedings was, as contended by the respondents, one of importance for the appellants in the future administration of the Act or for anyone referring or commenting on a future proposal that was subject to an environmental impact assessment. The policies in issue in the proceedings had no statutory force and had ceased to operate before the proceedings were commenced. There is also no suggestion that in the administration or application of the Act the relevance of those policies or other non-approved policies had previously been a matter of controversy or concern that called for resolution. Certainly the point in issue was not a matter on which there had been a division of judicial opinion before the proceedings had been commenced. The respondents had simply pursued, amongst other legal points, a novel legal point in furtherance of their endeavour to overturn the environmental approval for the project - a point that was found on appeal to be without merit. While no doubt many members of the public were interested in whether the Roe 8 proposal would proceed, some in favour and some against, that is distinct from issues going to the details of the procedures involved in the approval process.

53 And at least at first instance the respondents apparently did not regard it as litigation of a kind that made it appropriate that each party should bear their own costs. The respondents engaged counsel and solicitors, and they sought, and the primary judge awarded them, costs against the appellants in respect of the proceedings at first instance.

54 The fact that the first respondent was a not-for-profit organisation, the majority of whose members, at least, did not stand to gain any private benefit from the litigation, is not a matter of great weight. As Kirby J pointed out in Oshlack, 'litigants espousing the public interest are not thereby granted an immunity from costs or a "free kick" in litigation' [134]: see also South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 154 ALR 411 [5]. Individuals or organisations, however well-intentioned, who embark upon litigation to pursue an objective of interest or concern to them in relation to the environment, or any other matter affecting the public more generally, cannot expect that, if unsuccessful, they will ordinarily be relieved of the risks as to costs involved in litigation. The well-meaning volunteer who pursues their own perception of the public interest through litigation does not have an entitlement to a 'free kick' on costs.

55 As the authorities make clear, it will be an exceptional case where a successful party to such proceedings will be required to bear its own costs. This is not one of those cases.

56 The first respondent resists, on a different ground, the third appellant's application for an order for its costs of the application for an urgent appeal order. It submits that, while the first respondent was served with the application, it was dealt with ex parte before the first respondent was in a position to respond to it and therefore the first respondent played no part in it. (In fact, the application was granted administratively by the court without a hearing.)

57 It is not disputed that the application was properly brought. To the extent the third appellant incurred costs that it is entitled to recover on taxation in respect of the application, there is no reason why they should be treated other than as costs of the appeal and therefore recoverable by the third appellant. Whether there are such costs will be a matter for the taxing officer.

1. the respondents are to pay the first and second appellants' costs of the proceedings at first instance; and
2. the first respondent is to pay the first and second appellants' costs of the appeal; and
3. the first respondent is to pay the third appellant's costs of the application for an urgent appeal order; and
4. if the amount of any of the costs is not agreed, those costs are to be assessed by a taxing officer.