REASONS FOR JUDGMENT
THE COURT
Introduction:
1 In February 2002, the Commonwealth Minister for the Environment and Heritage was asked by the State of Victoria to determine whether two sections of a proposed new freeway known as the Scoresby Freeway, required approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The proposals were formally referred to the Minister who determined that one of them was not a 'controlled action' within the meaning of the EPBC Act and did not require approval. This was on the basis that the project would be unlikely to have adverse impacts on listed animal and plant species protected under Pt 3 of the EPBC Act. The other section of the proposed freeway was determined to be a 'controlled action'.
2 The appellant, who is a university lecturer and who was President of the Public Transport Users Association, was concerned that the determination that the northern section of the proposed freeway was not a 'controlled action' did not reflect the real likelihood that once the two sections of the freeway were constructed the Government of Victoria would, at some future date, construct an additional section which would have adverse impacts on various protected species of plants and animals.
3 In the light of findings made by Gray J in 2003 in earlier litigation relating to the project the appellant asked the Minister to reconsider his decision on the basis that there was available substantial new information about the impact of the proposed action on various plants and animals protected under the EPBC Act. The new information relied upon was a finding by Gray J that a further freeway link was likely to be undertaken as a result of the construction of the northern section which was the subject of the Minister's original decision. The Minister declined to reconsider his original decision. He did so on the basis that there was no substantial new information. The existence of such information was a necessary condition of his power to revoke the original decision.
4 In response to a request from the appellant the Minister had, in 2002, provided reasons for his original decision. He mentioned in those reasons that he had taken account of public submissions including those made by the appellant. In a letter sent to the appellant in May 2003, following the request for reconsideration, the Minister referred to his view, not expressed in the earlier reasons for decision, that the environmental impacts of a future freeway link were not relevant impacts of the proposed northern section of the Scoresby Freeway.
5 In June 2003, the appellant commenced proceedings seeking judicial review of the original decision of the Minister and also of his failure to reconsider and revoke that decision. Weinberg J dismissed his application. He did so on the basis that the appellant was out of time to bring an application for review in relation to the first decision having regard to the provisions of s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The section, in substance, requires that an application for an order of review be commenced within 28 days after the provision of reasons for the decision unless time is extended by the Court. Over a year had elapsed between the Minister providing his reasons for decision and the commencement of the proceedings. His Honour declined to extend time. He also refused the application for review of the Minister's refusal to reconsider the original decision. He did this on the basis that the findings of Gray J in the earlier litigation did not constitute 'substantial new information' enlivening the Minister's power to revoke his earlier decision.
6 The appellant contends that the present proceedings were commenced within time as the Minister's reasons were incomplete and did not comply with s 13 of the ADJR Act. He did not challenge the refusal by his Honour to extend time but maintained that no extension was necessary as no reasons complying with the Act had been delivered. The appellant also contended that his Honour erred in holding that the findings made by Gray J in the earlier litigation did not amount to 'substantial new information'.
7 For the reasons which follow, none of these grounds succeeds and the appeal will be dismissed with costs.
Factual and Procedural History
8 On 19 February 2002, the State of Victoria made two referrals to the Commonwealth Minister for the Environment and Heritage pursuant to the EPBC Act. The referrals related to two sections of the proposed Scoresby Freeway. The referral directly relevant to these proceedings concerned the proposed construction, operation and maintenance of a freeway from the interchange with the Eastern Freeway and Ringwood Bypass in Ringwood to the interchange with the Monash Freeway in Dandenong North. The proposal, described as a 'road upgrade', involved the creation of about 15 kilometres of a new freeway. It was to be a six-lane freeway with an additional one or two auxiliary lanes in some sections and bicycle/pedestrian pathways within or adjacent to the freeway reserve.
9 The referral was made pursuant to s 68 of the EPBC Act for a decision by the Minister on whether the proposed work was a 'controlled action' within the meaning of s 67. A 'controlled action' is one which would require approval under Pt 9 of the EPBC Act. In deciding whether the proposed work was a controlled action the Minister was required to consider all adverse impacts (if any) the action had or would have or would be likely to have on matters protected by the provisions of Pt 3 of the EPBC Act. These 'matters' include World and National Heritage Properties, wetlands of international importance, listed threatened species and communities and listed migratory species.
10 The Minister sought comments from Commonwealth and State Ministers and from the public on the question whether the proposed action was a 'controlled action'. He received a number of submissions from members of the public including a submission from the appellant dated 27 February 2002. The appellant is a lecturer in the Faculty of Architecture, Building and Planning at the University of Melbourne and was at the time of his submission President of the Public Transport Users Association.
11 In his submission the appellant observed that the public name of the Scoresby Freeway was the 'Eastern Ring Road (Scoresby Section)', a name which appeared on signs erected by Vicroads along the freeway reservation and in the current Melway Street Directory. He saw this as giving rise to two questions. If the Scoresby Freeway was only a section of the Eastern Ring Road, where was the remainder? Why had that fact not been disclosed in the referral? He mentioned a meeting which he had attended in October 2001 of a Community Reference Group for the Melbourne Metropolitan Strategy at the Department of Infrastructure. He said that the meeting was held in a room used for seminars about the Strategy which had maps on the walls showing elements of the Strategy. One of those maps showed a link from the Scoresby Freewayto the Metropolitan Ring Road which appeared to go through Bulleen and the Banyule Flats. He contended that the Victorian Government planned to construct such a link but feared a community backlash about it and was therefore keeping quiet about its plans. He asserted that the intention was to build the Scoresby Freeway creating a ring road with a 'hole' in the middle ensuring that the final link was a fait accompli.
12 The appellant submitted that the preferred route for the final link would affect Bolin Bolin Billabong at Bulleen and Banyule Flats at Heidelberg. Bolin Bolin is a site for River Swamp Wallaby Grass listed as a threatened plant species in the vulnerable category under the EPBC Act. Banyule Flats is a site for two plant species also listed as threatened in the vulnerable category. The Flats were also said to be a habitat for four migratory bird species listed under International Treaties and protected under the EPBC Act. The appellant submitted:
'The effects of the whole ring road project must be assessed. As the first of the Principles of ecologically sustainable development listed in s 3A of the EPBC Act states: "decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations".'
13 On 21 March 2002, Gerard Early, the First Assistant Secretary of the Approvals and Wildlife Division of the Department of the Environment and Heritage (Cth), sent a minute to the Minister which stated, inter alia:
'Many of the public submissions also argued that the Scoresby Freeway project would facilitate the future construction of a link between Greensborough (the present terminus of the Northern Ring Road) and the Eastern Freeway via Heidelberg, to complete the Melbourne Ring Road ... and that this would adversely affect the important habitat areas.
When deciding, under section 75 of the EPBC Act, whether a referred action is a controlled action, you are required to consider all adverse impacts that the referred action has, will have, or is likely to have on the matter protected by each provision of Part 3. In this context, it is not open to you to take into account the potential impacts of actions that might possibly be taken at some future time, and might in some way be related to, or facilitated by, the referred action - such as, in this case the hypothetical Greensborough-Eastern Freeway link. If the Victorian Government were at some future point to propose construction of such a link, that proposal would need to be separately referred and considered under the EPBC Act.'
14 On 21 March 2002, the Minister decided that the proposed action in relation to the northern section was not a 'controlled action' within the meaning of the EPBC Act. The text of the decision was thus:
'Decision that action is not a controlled action
Pursuant to section 75 of the Environment Protection and Biodiversity Conservation Act 1999, I, DAVID ALASTAIR KEMP, Minister for the Environment and Heritage, decide that the proposed action, set out in the Schedule, is not a controlled action.
SCHEDULE
The proposed action by the Victorian Government to construct, operate and maintain the Scoresby Freeway from the interchange with the Eastern Freeway and Ringwood Bypass in Ringwood (City of Maroondah) to the interchange with the Monash Freeway in Dandenong North (City of Greater Dandenong), and as described in the referral received under the Act on 21 February 2002 (EPBC 2002/580).
Dated this 21st day of March 2002
David Kemp
Minister for the Environment and Heritage'
On the same day the Minister decided that the proposed action in relation to the southern section was a 'controlled action' and would require approval.
15 The Director of the Referrals Section of the Department of the Environment and Heritage sent a letter to the appellant on 25 March 2002 advising him of the Minister's decision. He also advised him of the Minister's decision about the proposed action to construct the southern section.
16 On 16 April 2002, the appellant sent a letter to the Minister requesting reasons for each of the decisions pursuant to s 13 of the ADJR Act. The Minister responded on 29 May 2002 with a letter attaching the reasons for decision. In the reasons for decision the Minister set out the relevant provisions of the EPBC Act, being ss 68, 74 and 75. He described the proposed action in the terms set out in the referral from the Victorian Government. The evidence upon which he relied, and which he identified in the reasons, comprised the brief from the Department of the Environment and Heritage dated 21 March 2002 which included the referral, an Assessment of the proposed Scoresby Freeway in relation to Commonwealth and State biodiversity legislation dated February 2002, advice from his Department concerning the potential impacts of the action on matters protected under the EPBC Act and copies of public comments. Other documents referred to included assessments of environment effects and hydrological and water quality impacts.
17 The Minister identified listed threatened animal and plant species known to occur in the vicinity of the proposed area. He referred in particular to the plant known as Dwarf Galaxias and found that it could be affected by changes to water quality and hydrology. However he also found that the freeway would be constructed using sediment controls outlined in the Victorian Environment Protection Authority Guidelines and that any discharge into the waterways would meet State Environment Protection Policy for water quality. He found that a significant impact on the Dwarf Galaxias was unlikely. He referred to the bird species known as the Swift Parrot and the Regent Honeyeater known to occur along the relevant road reservation. No habitat critical to their survival was known to occur along the reservation. Because the native vegetation of the freeway road reservation had been substantially modified there were no suitable habitats for other threatened species being the Southern Brown Bandicoot, the Spot-tailed Quoll, the Southern Bell Frog, the Australian Grayling and the Yarra Pygmy Perch. The proposed action was therefore unlikely to have a significant impact on these species.
18 The Minister considered the impact of the proposal on migratory species and found that the road reservation was not known to contain any important habitat for any migratory species listed under the EPBC Act. He concluded (at pars 19 and 20) of his reasons for decision:
'19. In light of my finding that the proposed action is not likely to have a significant impact on listed threatened species or listed migratory species, I found that the proposed action is not a controlled action.
20. In making the decision, I took account of comments received from the public. I also took account of the precautionary principle.'
19 On 26 October 2001, the appellant had commenced proceedings in the Federal Court against the Roads Corporation, a Victorian statutory authority, and Mr Peter Batchelor, the Minister for Transport of the State of Victoria. The relief sought in the application was an injunction under s 475 of the EPBC Act restraining the respondents from taking any further action relating to the construction of the Scoresby Freeway or Eastern Ring Road. The original basis for the application was that the environmental effects of the freeway and any link between it and the end of the Western Ring Road at Greensborough were such as to require the decision of the Commonwealth Minister for the Environment as to whether approval should be given for the project pursuant to Pt 7 of the EPBC Act. The application was evidently commenced on the assumption that the project was not going to be referred to the Minister. This assumption was falsified by the State's referral of the project to the Minister in February 2002.
20 On 4 March 2002, the appellant was granted leave to file an amended application and add the State of Victoria as a respondent. The basis upon which the application was then put was that the respondents had provided misleading information in relation to the construction of the freeway and that they should be restrained from further disseminating such information and from taking any further action relating to the project until such time as the misleading information had been corrected. The amended application was filed on 6 March 2002. It was heard by Gray J on 29, 30 and 31 October 2002. On 8 April 2003, his Honour gave judgment - Mees v Roads Corporation [2003] FCA 306. He rejected a contention by the appellant that there was a secret plan or intention on the part of the respondents to build a freeway link between the Eastern Freeway and its interchange with Bulleen Road and the Metropolitan Ring Road at Greensborough. He was, however, of the view that the referral of the proposal for the northern section of the Scoresby Freeway was misleading in one respect. He said:
'It failed to inform the Environment Minister of the strong chance that a freeway link would be built at some time in the future between the Eastern Freeway at Bulleen and the Metropolitan Ring Road at Greensborough, as a consequence of the building of the northern section of the Scoresby Freeway.'
His Honour accepted that it might be that the Minister was able to discern the truth because of the obvious gap and the obvious inadequacy of an incomplete Ring Road. It may be that he was in fact fully informed. Certainly the appellant had taken steps to inform him that it was likely that a Bulleen Freeway link would be developed and of its environmental significance. His Honour said:
'These facts, however, cannot have a bearing on the question whether the document itself was misleading.'
The characterisation of the referral as misleading was the resolution of a preliminary issue determined by his Honour. The question of what, if any, relief should be awarded, was stood over. On 23 April 2003, after hearing submissions on the question of relief, his Honour ordered that the application be dismissed and that the appellant pay the respondent's costs of the proceedings on and after 17 April 2003 - Mees v Roads Corporation [2003] FCA 410.
21 On 2 May 2003, the appellant wrote to the Minister referring to the judgment of Gray J given on 8 April 2003 and enclosing a copy of the reasons. He said in his letter that a week after the judgment was given the Victorian Government announced that a freeway would be built as a toll road and that construction would not commence until 2004. On this basis the appellant had decided not to pursue his original application for an injunction, which was accordingly dismissed by the Court. He had applied for a declaration but that had been declined. He said in his letter:
'In my submission, the effect of the Court's decision which is summarised most succinctly in paragraph 118, is to activate your power under section 78 of the EPBC Act to reconsider your 2002 decision that the northern section of the freeway (referral no 2002/580) was not a controlled action. The new information required pursuant to s 78(1)(a) has been provided by the Court's finding that the proponents provided you with misleading information by not disclosing the high likelihood of the freeway causing the construction of a further road through Bulleen and Heidelberg. This road would affect endangered species and migratory birds. (See Dr Buxton's Affidavit for details)'
22 The Minister responded to the appellant's letter on 7 May 2003. In his response he said:
'The traffic assessment reports, on which the Court finding that the referral was misleading in one respect was based, were available to me at the time of my decision that the northern section of the Scoresby Freeway was not a controlled action. I have been aware of the possibility of the future need for a freeway link as a consequence of the Scoresby Freeway and have considered concerns about this matter when making decisions about the Scoresby Freeway.
As such the Court findings, and your submissions in relation to the Court proceedings, do not provide a basis for reconsideration, as they are not substantial new information. Further, in my view the environmental impacts of a future freeway link are not relevant impacts of the northern section of the Scoresby Freeway.
I note that the Victorian Government has clearly stated that there is no plan to build a freeway link at this time. If in the future the Victorian Government decides to build a freeway link that is likely to affect matters of national environmental significance, I would expect the proposal to be referred under the EPBC Act for a decision on whether environmental assessment and approval is required.
I would also like to take this opportunity to advise you that I have granted approval, subject to conditions, for the southern section of the Scoresby Freeway, following a rigorous assessment and approval process under the EPBC Act. A copy of the approval and conditions is attached for your information.'
23 On 10 June 2003, the appellant filed the application under which the present proceedings were instituted. He sought review under the ADJR Act of the Minister's decision of 21 March 2002 that the proposed construction of the northern section of the freeway was not a 'controlled action'. The appellant also sought review of the Minister's 'decision' on 7 May 2003 which he characterised as 'a decision not to reconsider the substantive decision'. In each case the ground upon which the appellant claimed that the decision should be set aside was as follows:
'The Minister failed to take into account a relevant consideration, namely, the "strong chance" that a freeway link will be built at some time in the future between the Eastern Freeway at Bulleen and the Metropolitan Ring Road at Greensborough (an Eastern Freeway-Greensborough link), as a consequence of the building of the action proposed in the northern section referral.'
The Minister filed an objection to the competency of the application on 14 July 2003. The basis of the objection was that the decision made on 7 May 2003 was not a decision under the EPBC Act.
24 The application came on for hearing before Weinberg J on 17 February 2004 and on 31 March 2004 his Honour dismissed the application, upheld the objection as to competency and gave directions for the filing and serving of written submissions on costs on or before 23 April 2004. On 3 May 2004, his Honour made further orders requiring the appellant to pay 50% of the Minister's costs of and incidental to the substantive application.
25 On 1 June 2004, the appellant filed an application for an extension of time to file and serve a notice of appeal against the judgment of Weinberg J. The proposed notice of appeal had been filed on 21 May 2004. When the appeal came on for hearing, the extension of time was granted and argument proceeded on the merits of the appeal. Although, as appears below, his Honour dismissed the application on the basis that it was brought outside the time limited by the ADJR Act and although there might be some argument therefore that the orders made by his Honour were interlocutory, the parties were content to treat them as final. On the basis that the judgment below was final, which would seem to have been correct, no leave to appeal was required. Had it been required it would have been granted as the practical effect of the judgment below was finally to dispose of the appellant's claim for relief.
Reasons for Judgment of the Primary Judge
26 In his reasons for judgment the learned primary judge set out the factual and procedural background leading up to the application under the ADJR Act. He identified the substantive decision as that made by the Minister on 21 March 2002 that the proposed action by the Victorian Government to construct, operate and maintain the northern section of the Scoresby Freeway was not a 'controlled action'. His Honour also referred to the statement of reasons which were provided by the Minister on 29 May 2002 under s 13 of the ADJR Act and observed:
'In schedule (sic) to the statement of reasons, the Minister referred specifically to the applicant's submission. However, the Minister made no reference whatever in those reasons to the possibility of an Eastern Freeway-Greensborough link being built. Notwithstanding that fact, the applicant took no steps, at that stage, to challenge the substantive decision. His explanation for his inaction is contained in an affidavit sworn 30 June 2003, in which he said at par 6:
"The respondent's reasons made no reference to the submission I made about the Bulleen-Heidelberg Freeway. I believed at the time that this was because the respondent had no capacity under the EPBC Act to investigate the truth of my allegations about the issue."'
27 His Honour then referred to the second decision notified to the appellant on 7 May 2003 in which the Minister concluded that the Court findings and the appellant's submissions in relation to them did not provide a basis for reconsideration as they were not 'substantial new information'.