Plaintiffs v Defendants

1 The duplication of the Western Highway is taking place in stages. The first defendant ('VicRoads') is about to embark on the construction of Section 2B of the duplication project, which diverges from the existing highway and involves the compulsory acquisition of land owned by the first and second plaintiffs. They and the community group that is the third plaintiff are concerned that the alignment that has been selected for this part of the duplication project is not the best alignment and will result in significantly more damage to the environment than an alternative alignment that they prefer. The plaintiffs' preferred alignment is referred to as the 'northern alignment', being to the north of the existing highway.

2 Section 2 of the duplication project (Beaufort to Ararat) was the subject of an Environment Effects Statement ('EES') under the Environment Effects Act 1978 ('EES Act') that was also an accredited process under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act'). The EES incorporated a report dated August 2012 entitled 'A Biodiversity and Impact Assessment Report - Flora Fauna and Ecological Communities' prepared by Ecology & Heritage Partners ('EHP report').

3 Section 2 was also the subject of a Panel inquiry undertaken pursuant to both the EES Act and the Planning and Environment Act 1987, and an assessment by the Minister for Planning made in May 2013 ('Minister's assessment') that resulted in a number of statutory approvals permitting Section 2 of the duplication project to go forward ('2013 approvals').

4 The Panel inquiry considered two competing alignments for Section 2B of the project: VicRoads's preferred alignment ('Option 2'), and the alignment that passed through the land of the first and second plaintiffs ('Option 1'). The Panel also gave consideration to the northern alignment proposed by the plaintiffs. The Panel recommended the Option 1 alignment. The Minister accepted that recommendation in the Minister's assessment.

5 Since the preparation and exposure of the EES, the Panel inquiry and recommendations, the Minister's assessment and the 2013 approvals, the EHP report has been shown to be deficient in a number of respects.

6 In May 2014, a final 'net gain analysis' conducted by VicRoads revealed that the EES had severely underestimated the number of large old trees ('LOTs') that would be removed for the Option 1 alignment. In August 2015, VicRoads formally acknowledged the discrepancy, which it described as 'significant', and in March 2016 prepared a report 'to understand and explain what [had] occurred in relation to the underestimated number of LOTs ('LOT report'). The LOT report identified the EES' focus on Matters of National Environmental Significance ('MNES') and vegetation of Very High and High Conservation Significance rather than LOTs. While acknowledging that it was impossible to know whether the outcome of the EES would have been different had the correct number of LOTs been included from the outset, the LOT report nonetheless stated:

Given that the primary biodiversity focus appeared to be on matters other than LOTs, it is not unreasonable to speculate that even if the increased number of LOTs had been known, the options assessment would not have been greatly influenced and Option 1 would have likely remained as the favoured alignment.

7 The LOT report also stated that it was 'likely' that the suite of required statutory approvals and associated conditions would have been 'similar' if the actual number of LOT losses was known at the time the EES was being assessed.[1]

8 From at least September 2014 onwards, the first and second plaintiffs sought to bring to VicRoads' attention what they said were significant omissions of vegetation in studies done for Option 1 in the EES.

9 The first plaintiff has commissioned or obtained a number of expert reports that are critical of the EES. One, in particular, prepared by Practical Ecology, has compared the environmental impact of the Option 1 alignment with the impact of the northern alignment, concluding that the northern alignment would involve significantly less environmental impact than Option 1.

10 In December 2015, VicRoads engaged Biosis Pty Ltd to 'provide a peer review of various reports and assessments conducted on the Western Highway Project between Beaufort and Ararat to assess the overall compliance of the project with Victoria's Native Vegetation Management Framework (NRE 2002 - the Framework) and whether the comparisons between various alignments are reasonable and logical'.

11 The Biosis report concluded, among other things, that the analysis of the Option 1 alignment in the EHP report did not comply with the requirements of the relevant native vegetation framework. It stated that the data collection process used by EHP was likely to have resulted in substantial areas of native vegetation not being mapped and assessed, and that the data set was inadequate for comparisons of alignment options selected during the EES process and to achieve the objectives of the EES.

12 Upon receipt of the Biosis report, VicRoads asked EHP to respond. EHP conducted a field inspection in March 2016 and responded by acknowledging that the identification of new areas of vegetation resulted in an increase in vegetation losses for Option 1 and the modification net gain targets. It stated, however, that a comparison of data for Option 2 with the 2016 data for Option 1 demonstrated that Option 1 would result in lower vegetation losses than Option 2.

13 In the light of EHP's response, VicRoads stated:

Many of the errors and inconsistencies that Biosis Pty Ltd have identified, particularly those relating to offset calculations and compliance with Victoria's Native Vegetation Management Framework, have been addressed through subsequent detailed Net Gain Analysis undertaken after adoption of the final alignment.

14 There is a dispute between VicRoads and the plaintiffs as to whether additional offsets are an appropriate response to the deficiencies identified in the EES. The plaintiffs seek a reconsideration of the alignment of Section 2B. They contend, in substance, that because the EES is 'invalid', the decision-making process based upon the EES leading to the selection of the Option 1 alignment is invalid as well.

15 The plaintiffs have urged VicRoads and the Minister to restart the assessment process and to reconsider the alignment of Section 2B of the duplication project so as to minimise adverse impacts on the environment. They say that the 'precautionary principle' dictates that such a course of action be taken.

16 VicRoads and the Minister have declined to recommence the assessment process or to reconsider the alignment of Section 2B.

17 By amended summons on originating motion dated 9 November 2016, the plaintiffs now seek an interlocutory injunction restraining the defendants from -

(a) taking any further preconstruction actions along the Option 1 alignment of Section 2B;

(b) taking any step to commence any works or roads on or in the vicinity of the Option 1 alignment, including earthmoving, clearing, excavating, felling, lopping or cutting any trees or parts of them or any fencing ('works');

(c) continuing any works on the Option 1 alignment which have commenced;

(d) engaging in other works or activities on the Option 1 alignment to facilitate the activities referred to in paragraphs (a) to (c);

(e) awarding a contract to commence any works on the Option 1 alignment.

18 The plaintiffs also seek injunctions and/or orders 'akin to mandamus' requiring, in effect, VicRoads and/or the Minister to consider altering the gazetted alignment of Section 2B of the duplication project and to prepare and submit a new environment effects statement for that project.

19 Proposed Orders 2 and 3 in the amended summons seek what is plainly final relief in that they require consideration to be given to alter 'the gazetted alignment of section 2 of the Western Highway duplication' and the preparation of a new and 'valid' environment effects statement. The need for such measures in precisely what is put in dispute by the originating motion.

20 The plaintiffs also seek an expedited hearing of some of the matters in the originating motion. At the hearing of the application for the injunction, the plaintiffs proposed that the Court consider the validity of the EES as a separate or preliminary question, which they argued could be heard and determined quickly on the basis of agreed facts and the VicRoads' 'admissions' in the LOT report.

21 In my view, the proposition that the 'validity' of the EES could be quickly determined by the Court on the basis of 'admissions' and in the absence of competing expert evidence as to its reliability - and as to the effect of further studies and actions - is fanciful. Moreover, I question the utility of such a course. A finding by the Court that the EES contained critical factual errors or that the EES did not conform with the requirements of the EES Act or Minister's guidelines, or even that EES did not provide a proper basis for the selection of the alignment of Section 2B would not necessarily result in the grant of the relief sought in the originating motion. The relief sought is discretionary relief. What has happened since the Minister's assessment and the 2013 approvals is likely to be relevant to the exercise of the Court's discretion.

22 Accordingly, I do not propose to deal with the 'validity' of the EES as a separate or preliminary question. As to the trial of the proceeding as a whole, the Court has made dates available for a trial in the second half of January 2017. That constitutes an expedited hearing. Whether the parties will be in a position to commence on the first of those dates, and whether the trial will be able to be completed in the limited number of days allocated, will depend on whether the plaintiffs persist with all of the grounds in the originating motion, many of which seem to me to obscure what is really in issue between the parties.

23 I turn to consider the plaintiffs' application for an interlocutory injunction.

24 Before granting an interlocutory injunction, the Court must be satisfied that there is a serious question to be tried and that the balance of convenience favours the grant of the interlocutory relief. The adequacy of damages is also a relevant consideration, as is the absence of a viable undertaking as to damages.

25 The plaintiffs submit that in the present case, the question of compliance with the precautionary principle is clearly a serious question to be tried. They rely on Environment East Gippsland v VicForests,[2] where the Court granted a similar injunction based on threats to listed species under the Flora and Fauna Guarantee Act 1998 and the EPBC Act and having regard to VicForests' statutory obligation to apply the precautionary principle.

26 For its part, VicRoads submits that the plaintiffs' claims do not give rise to any serious question to be tried. It says, in particular, that the decisions in 2013 have been acted upon and are therefore unlikely to be undone, and that the 'decisions' attributed to the VicRoads and the Minister in 2016 are not decisions that are amenable to judicial review.

27 The plaintiffs seek declarations of invalidity in relation to the Minister's assessment and the 2013 approvals, based principally on the invalidity of the EES. They seek certiorari in respect of 'decisions' made by VicRoads and the Minister in 2016, which, in substance, involved a refusal to accede to the plaintiffs' requests to review the Minister's assessment in relation to the relative merits of the competing alignments, and VicRoads' decision to commence works on Option 1.

28 The plaintiffs' grounds for review of the decisions that they challenge are many and varied. Apart from the challenge to the EES, they include failure comply with the precautionary principle and, more generally, the failure of VicRoads and the Minister to 'acknowledge and consider the exercise of their ongoing jurisdiction, powers and duties' in their respective capacities as project proponent and Minister for Planning. The plaintiffs also allege breaches of procedural fairness (including by the Panel) and breaches of the obligations in the Charter of Human Rights and Responsibilities Act 2006 ('Charter'). The plaintiffs further allege that there has been a breach of an implied contract between the CEO of VicRoads and the first plaintiff resulting from VicRoads' commissioning of the Biosis report.

29 It is clear that the Minister made a series of reviewable decisions in 2013 in the form of the 2013 approvals. If the EES contained so many factual errors as to be incapable of properly informing the decision-making of the relevant decision-maker, these decisions might be impugned on the basis that the decision-maker failed to take into account a relevant consideration or took into account an irrelevant consideration, or that the decisions were unreasonable in the Wednesbury sense. However, the lawfulness of these decisions would be considered in the light of the fact that the errors in the EES became known well after the conclusion of the EES process, the Minister's assessment and the 2013 approvals.

30 Furthermore, it is relevant to the grant of the declaratory relief sought that the 2013 approvals have been acted upon. The alignment for Section 2 of the duplication project has been gazetted, funding has been obtained and spent (in part), planning scheme amendments have been made, land has been compulsorily acquired, and half of Section 2 of the duplication project has already been completed. In these circumstances, the plaintiffs' claim for declaratory relief faces significant difficulty.

31 The 'decisions' made in 2016 fall into a different category from the 2013 approvals. There is a real question as to whether the decisions identified are amenable to judicial review.

32 The 'decisions' by VicRoads and/or its CEO in respect of which certiorari is sought are:

(a) the decision to resile from the agreement or representation made by the CEO on 18 December 2015 to undertake an independent review of the EHP report to determine whether it met the requirements for an environmental assessment at the time of the EES and thus confirm that the Panel made its recommendation based on valid data;

(b) the decision not to refer to the new Minister the (former) Minister's assessment in relation to the two alternative alignments; and

33 Certiorari is also sought to set aside a decision made by the Minister in 2016 to authorise a letter described as the 'DELWP 5 October letter', which stated, among other things, that there was no basis or mechanism to alter the alignment of the duplication project.

34 In substance, the impugned 2016 decisions all concern a refusal to review or reconsider the alignment of Section 2B of the duplication project, having regard to the deficiencies in the EES and the EES process. The 'decision' to commence works on Option 1 is a product of these refusals.

35 In identifying the 'decisions' that they say are unlawful, the plaintiffs rely on correspondence from VicRoads and the Minister declining invitations to meet with the plaintiffs to enable the plaintiffs to demonstrate that there were 'process failures' and other reasons to, variously, 'review a planning process followed in 2011-12', to 'review the planning assessment made in May 2013', to consider 'an application to the Planning Minister ... to review the 2013 decision of Planning Minister Matthew Guy' and 'to refer the 2013 planning assessment to the current Planning Minister for review'.

36 In substance, the 'decisions' by VicRoads and the Minister that are challenged are their responses to the plaintiffs' request for a review the Minister's assessment in 2013. The Minister's assessment under the EES Act was advisory. It was made to inform decisions under Victorian law - the 2013 approvals - and under the EPBC Act. Apart from the precautionary principle and obligations said to arise under the Charter, the plaintiffs have not identified the source of any legal obligation requiring VicRoads or the Minister to carry out the review that is sought. The requests made by the plaintiffs to review or to cause to be reviewed the Minister's assessment did not themselves impose any legal obligation on the Minister or VicRoads to carry out the review or reviews sought, such that a refusal to do so could be held to be unlawful.

37 Likewise, the 'decision' by the CEO of VicRoads to resile from an agreement or undertaking in respect of the review of the EHP report does not seem to me to be a decision that is reviewable on administrative law grounds.

38 As to the requirement to apply the precautionary principle, the plaintiffs' reliance on Environment East Gippsland Inc v VicForests[3] is misplaced. In granting an interlocutory injunction, J. Forrest J carefully considered the regulatory regime with which VicForests was bound to comply when carrying out logging operations. His Honour found that the Code of Practice for timber production imposed obligations on those who came within its purview. To facilitate the protection of biodiversity values, a series of matters had to be addressed during timber harvesting operations, including the application of the precautionary principle. His Honour held that the Code imposed significant 'mandatory' environmental obligations on VicForests at both the planning and operation level.[4] Likewise, the East Gippsland Forest Management Plan and the Flora and Fauna Guarantee Action Statements were 'far from lofty statements of principle, but rather, given the inherent tension between the principles of conservation and logging, [were] designed to set out precisely the manner in which VicForests [would] carry out its logging'.[5]

39 On the basis of his careful consideration of the regulatory regime for timber harvesting, J Forrest J concluded that, at the very least, there was a prima facie case that it was necessary for VicForests to apply the precautionary principle and to consider relevant scientific evidence in the event of a detection of particular species within a coupe.[6] The Code and the Plan created legal obligations with which VicForests had to comply when carrying out logging operations in the coupes.[7]

40 The plaintiffs have not identified an Act or instrument that gives rise to an obligation to apply the precautionary principle in the present case.

41 The plaintiffs point to the decision-making principles in the Transport Integration Act 2010 ('TI Act'), which include the precautionary principle. VicRoads is a 'transport body' for the purposes of the TI Act and s 24(2) provides that a transport body must have regard to the decision-making principles in making decisions 'under any transport legislation'. 'Transport legislation' is defined in s 3 of the TI Act. The definition lists a series of Acts, along with any other Act declared to be transport legislation, none of which the plaintiffs identify as relevant. As a result, the TI Act does not appear to impose an obligation on VicRoads to apply the precautionary principle in this case.

42 As to the application of the Charter, the plaintiffs allege that in making the suite of decisions commencing with 'the recommendations contained in the Inquiry Panel Report' and the Minister's assessment through to the 'decision' of the Minister in the DEWLP 5 October letter to decline to review the Minister's assessment, there was a failure to give 'consideration' to the human rights of the first and second plaintiffs. The relevant human rights involve the rights to property and privacy (arising from the compulsory acquisition of their land), and to participate in public affairs and have a fair hearing (arising from the Panel process and subsequent dealings with the Minister and VicRoads). It is alleged that none of the decision-makers in question 'gave express or implicit consideration to the Charter' in making their decisions.

43 Certainly, the Charter rights of the first and second plaintiffs are not mentioned in any of the documentation that has been exhibited by the plaintiffs' solicitor. This may indicate an absence of 'consideration' of their human rights.

44 However, the plaintiffs' reliance on the Charter to obtain the declarations that it seeks in relation to the 2013 decisions and to set aside the 2016 'decisions' appears to me, prima facie, to be problematic. The relief sought in the originating motion does not include orders quashing the decisions to compulsorily acquire the first and second plaintiffs' land under the Land Acquisition and Compensation Act 1986. Furthermore, some of the 'decisions' identified in the originating motion as requiring consideration, specifically, of the rights of the first and second plaintiffs to participate in public life and to have a fair hearing would, it seems to me, also require consideration of the rights of members of the public of Victoria at large.

45 Moreover, there remains the difficulty that most of the decisions identified may not be 'decisions' that are amenable to review by the Court. Section 38 of the Charter provides that it is unlawful for a public authority, 'in making a decision', to fail to give consideration to a relevant human right. Section 39 then provides that a person may seek relief or remedy on the ground of unlawfulness arising because of the Charter where, otherwise than because of the Charter, they are entitled to seek relief on the ground that the decision was unlawful. The Charter grounds therefore suffer from the same difficulty as the other grounds, namely, whether the decisions that are impugned are reviewable by the Court.

46 It is tolerably clear that the EES, which formed the basis for the Panel's recommendations and the Minister's assessment, contained factual errors about the impact on flora and fauna of the Option 1 alignment. On this basis, good public administration might well require the alignment to be reconsidered. However, the Court has no jurisdiction simply to cure administrative injustice or error.[8] There must be shown to be a reviewable decision that was unlawful.

47 The originating motion in its present form is so long and convoluted as to make it very difficult 'to see the wood for the trees'. Every conceivable complaint about the now four year long process of bringing Section 2B of the duplication project to fruition has been included, whether or not it is underpinned by a recognised administrative law ground for review. The originating motion is replete with paragraphs which, as the Minster submitted, 'go nowhere'. This has made it particularly difficult to assess whether there is a serious issue to be tried in this case.

48 The 2013 approvals are administrative decisions that are (or were) amenable to review. They are alleged to have been made unlawfully because of 'errors of fact and law in the EES and the Panel Inquiry's report'. Despite the length of the originating motion, it does not specify the type of administrative law error said to arise from this circumstance. Nonetheless, there is, potentially, a question to be tried in relation to the lawfulness of the 2013 approvals. This may also give life to some of the Charter grounds.

49 However, I am not persuaded that, as they presently put their case, the plaintiffs have shown 'a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending a trial'.[9]

50 Furthermore, the balance of convenience does not favour the grant of an injunction.

51 The project director for the Western Highway Project at VicRoads, Mr Michael McCarthy, has made an affidavit dated 4 November 2016 in which he deposes to the work schedule for the works to effect Option 1.

52 The first works to be carried out involve Powercor, which must install electricity lines on the alignment before the road can be constructed. At the date of the McCarthy affidavit, VicRoads had commenced preparatory work to allow Powercor to do its work and Powercor had procured and delivered poles to be erected. The work will take approximately six weeks to carry out. Powercor has advised that it will not commence any works if it cannot complete those works by the end of June 2017.

53 As to the tendering process, Mr McCarthy has deposed that VicRoads is currently reviewing tender submissions received on or before 26 October 2016 and intends to award the successful tenderer the contract this calendar year or within the first few weeks of 2017.

54 According to Mr McCarthy, the first stage of construction works will involve tree and vegetation removal, telecommunication relocations, topsoil stripping and cut and fill works. They require substantially dry weather in order to be completed. If the tender is awarded prior to the end of 2016 or in the first weeks of 2017, the contractor will be in a position to commence the works in March 2017 and be able to substantially progress the works prior to June 2017 and the onset of wet weather.

55 Mr McCarthy deposes that the impact of delay in awarding the tender or on the successful tenderer making an immediate start in order to maximise the dry weather is significant. Any delay in the commencement of the works beyond March 2017 would result in the tenderer losing the benefit of the dry weather and the Section 2B works would not substantially commence until October 2017, potentially delaying the project for approximately seven months.

56 Mr McCarthy deposes to potentially serious financial consequences for VicRoads in such a delay.

57 On the basis of this evidence, it appears that no substantial works are due to occur before March 2017. While the Powercor works may involve some trimming of trees, the physical works that that are likely to cause significant environmental damage are not scheduled to commence until March 2017.

58 It is therefore possible for the proceeding to be heard and determined before the commencement of any works that will destroy the subject matter of the proceeding. Whether the timetable is met will depend in large part on the willingness of the plaintiffs to frame their case more tightly. As presently drafted, the originating motion is very difficult to grapple with, for the judge as much as for the defendants. The Court will be assisted in hearing and determining the proceeding if the originating motion sets out precisely the decisions that are challenged with the grounds that are raised in respect of each decision. At the moment, matching the decision with the ground or grounds for its review presents some difficulty.

59 As things presently stand, then, the balance of convenience does not favour the grant of an injunction.

60 The final element is the undertaking as to damages. The plaintiffs offered no undertaking as to damages at the hearing of the injunction application. They argued that the litigation was public interest litigation, and that no undertaking should be required for that reason. They also argued that they should not be required to give an undertaking as to damages when defending their human rights. I reject these submissions. While the proceeding has been brought to prevent damage to the environment, and therefore serves a broader public purpose, the first and second plaintiffs each have a personal interest in the outcome proceeding, insofar as they allege breaches of their rights to property and privacy. In my view, the fact that no viable undertaking as to damages is offered in this case militates against the grant of the injunction.

61 The Court subsequently received a letter from the plaintiffs' solicitor stating that the third plaintiff would give an undertaking as to damages. The third plaintiff is a community group recently incorporated under the Associations Incorporation Reform Act 2012. There is no evidence that it would be able to honour any undertaking. The first and second plaintiffs, who are affected landowners, have not offered to give an undertaking. In my view, no viable undertaking has been offered.

62 As a result of my conclusion that there is not a sufficient likelihood of success to justify the preservation of the status quo, the fact that the balance of convenience at this stage favours the defendants and in the absence of a viable undertaking as to damages, the plaintiffs' application for the orders in the Amended Summons on Originating Motion dated 9 November 2016 is refused.

[1] Further, it stated that given the underestimation of LOTs would not have significantly influenced the proportion of VHCS and HCS vegetation affected by either alignment, it was not unreasonable to suggest that the manner in which the principles in the Native Vegetation Management Framework were applied remained valid. The key question was whether the actual number of LOTs had been accounted for in calculating the native vegetation offset for the project, and it had been.

[2] [2009] VSC 386.

[3] [2009] VSC 386.

[8] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35.

[9] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [65].