Plaintiffs v First Defendant

Plaintiffs v First Defendant - [2020] VSC 328 - VSC 2020 case summary — Zoe

[24]

(1) Are the Section 2B works 'works' to which the EE Act applies, by operation of s 8B(7) of the EE Act?

Yes.

(2) Is the effect of s 8C(1)(a) of the EE Act that the Section 2B works must not proceed in the absence of a valid Ministerial Assessment?

No. The effect of s 8C(1)(a) is that the Stage 2 works, which included the Section 2B works, could not proceed until VicRoads had prepared an EES and submitted it to the Minister for his assessment. That occurred in August 2012.

(3) Is the effect of s 8C(1)(b) of the EE Act that the Minister could not:

(a) make the Exemption Decision; or

(b) adopt and approve Amendment C37,

in the absence of a valid Ministerial Assessment?

No. Section 8C(1)(b) did not apply to the Minister in this case.

(4) Is certain evidence sought to be led by the plaintiffs to establish the alleged invalidity of the Minister's decisions admissible?

No.

(5) Was the Minister's Assessment invalid on the basis of:

(a) a constructive failure to exercise jurisdiction;

(b) a failure to take into account relevant considerations or taking into account irrelevant considerations;

(c) unreasonableness or irrationality;

(d) a failure to inquire?

No. None of these grounds of jurisdictional error was established in relation to the Minister's Assessment.

(6) Is the Minister's approval of Amendment C37 under s 35 of the Planning Act amenable to challenge on the basis of the matters alleged by the plaintiffs?

Unnecessary to decide.

(7) Did the Minister rely upon the Minister's Assessment when:

(a) making the Exemption Decision;

(b) adopting and approving Amendment C37?

No.

(8) If the Minister's Assessment was invalid, and the Minister relied on it in making the Exemption Decision, was the Exemption Decision therefore invalid?

Does not arise. The Minister's Assessment was valid, and the Minister did not rely on it in making the Exemption Decision.

(9) Was the Exemption Decision invalid on the basis of unreasonableness or irrationality?

No.

(10) If the Minister's Assessment was invalid, and the Minister relied on it in adopting and approving Amendment C37, was the Adoption and Approval therefore invalid?

Does not arise. The Minister's Assessment was valid, and the Minister did not rely on it in adopting and approving Amendment C37.

(11) Was the Adoption and Approval invalid because the Minister was obliged to, and did not, take into account significant effects which he considered Amendment C37 might have on the environment?

No. The Minister did not have an implied duty to take into account significant environmental effects when adopting and approving Amendment C37. He was obliged to take those effects into account in preparing the amendment, and did so.

(12) In the event that any of the plaintiffs' grounds are made out, is the relief sought by the plaintiffs available and, if it is, should the Court exercise its discretion to grant declaratory relief in the circumstances?

As none of the plaintiffs' grounds is made out, there is no basis to grant the declaratory relief sought. The proceeding must be dismissed.

[33]

New section 8A will empower the minister to specify statutory decisions that are to be put 'on hold' pending the minister's decision on whether an EES should be prepared.

New section 8B sets out the process when a matter comes to the minister for advice under section 8.

...

In order to strengthen the coordination of decision making, new section 8C(1) will clarify that statutory decisions must be put 'on hold' until after the decision-maker has considered the minister's assessment of the environmental effects of a proposal.

The EES process will remain focused on those projects that have the potential for environmental effects of regional or state significance. The overall system of approvals legislation in Victoria, including for example the Planning and Environment Act 1987, the Environment Protection Act 1990, and the Minerals Resources Development Act 1990, provides a robust framework for decision making on such proposals. The reformed EES process can be applied in combination with these core statutory procedures to effectively address the environmental implications of strategically significant development proposals.

In many ways the Victorian system is clearer and more robust than that in other Australian States. Other States have been trying to 'catch up' with Victoria in recent years by tackling a patchwork of multiple approvals that apply to major projects. The reforms introduced by the bill and the new guidelines put Victoria further ahead when it comes to striking the right balance between economic, social and environmental goals. In doing so we are protecting the environment for future generations.

The effect of the reforms to the environmental impact assessment system now being introduced will modernise and improve the workability and effectiveness of the system.

...

Finally these reforms confirm the government's commitment both to facilitate major development in this state whilst at the same time advancing the essential priority of achieving an environmentally sustainable state.

[162]

WHP2 would result in the loss of a considerable amount of native vegetation and habitat, including significant quantities in the VHCS and HCS categories, affecting 10 EVCs, six of which are endangered.
The EES demonstrates that the alignment options selection process and specific design measures have attempted to avoid and minimise the impact on native vegetation to the extent practicable in achieving a highway of AMP3[60] standard between Beaufort and Ararat, although further avoidance of native vegetation (consistent with the NVMF[61]) can be achieved through the detailed design stage (as outlined in the EES).
The proposed clearance of VHCS native vegetation will be an unavoidable impact of the project. This is considered to be acceptable providing appropriate offsets are provided that meet the requirements of the NVMF and given there is some opportunity to minimise this during the detailed design stage.
There would be significant impacts on two EPBC-listed communities (Natural Temperate Grassland of the Victorian Volcanic Plain and Grassy Eucalypt Woodland of the Victorian Volcanic Plain). These impacts would be considered acceptable only if offsets were provides that met the NVMF and the EPBC Act Environmental Offsets policy (October 2012).
The impacts on the Spiny Rice-flower and the Dwarf Galaxia are not likely to be significant provided the environmental management commitments in Section 21.7.6 of the EES are fully implemented.
WHP2 would have a significant impact on the Golden Sun Moth through habitat removal, despite attempts to minimise this impact through the options selection process. These impacts would be acceptable only if offsets are provided to satisfy both the NVMF and the EPBC Act Environmental Offsets policy (October 2012).
Option 1 presented in the EES is superior in terms of overall biodiversity outcomes, particularly in reducing impacts on native vegetation of VHCS and HCS. It is noted however that Option 1 would have slightly higher impacts on matters of NES.

[236]

The Incorporated Document requires the preparation and approval of an Environmental Management Framework or equivalent document that will include key construction methodologies, an overall framework for site management and specific work measures in order to reduce and manage environmental effects during the construction of the project.

This project has previously been the subject of an Environmental Effect[s] Statement (EES), which was assessed in an Assessment Report (Assessment) in May 2013. Extensive investigation was carried out in relation to the environmental effects associated with the project as part of the EES. This included a detailed assessment of the ecological impact of the project.

This ecological assessment has been recently updated by reference to current conditions in order to accurately describe the impact the project will have. VicRoads contracted Ecology & Heritage Partners to determine the extent of impacts on native vegetation and species habitat ('Ecological Assessment: Western Highway Project Section 2B, Victoria, May 2017'). VicRoads provided Ecology & Heritage Partners with a refined construction footprint (refinements discussed below) to assess and quantify impacts to native vegetation.

[DELWP] Regional Planning sought assistance from colleagues in DELWP Land Planning and Approvals to review the report and ensure the methodology followed by Ecology & Heritage Partners is consistent with the requirements of native vegetation policy. In addition, this report used the methodology required by the Framework that is previous DELWP native vegetation policy in the Victoria Planning Provisions, and has since been replaced by the 'Biodiversity Assessment Guidelines, September 2013'. DELWP Biodiversity Policy allowed VicRoads to use the Framework methodology on the basis that VicRoads has sourced over 90 per cent of offsets for Stage 2B. Continuing to offset using this methodology would mean offsets would not need to be recalculated nor re-traded to source compliant offsets.

VicRoads sought independent peer review of the Ecology & Heritage Partners assessment through Brett Lane and Associates Pty Ltd Ecological Heritage Research & Management (report number 17130, dated 3 August 2017). Brett Lane and Associates were asked to consider the following:

[306]

The works that will be permitted by the Amendment will result in a safer road, eliminating and/or significantly reducing possible conflict between directional opposing traffic while providing for greater overtaking opportunity, resulting in a reduction in the potential for accidents. Compliance with the usual notice requirements of the Act will result in the delay of the delivery of these road safety benefits to the State and the region.
The Western Highway is the busiest undivided National Highway in Australia and the Western Highway is the second busiest interstate road freight corridor in Australia. By way of context, 43 people have been involved in casualty crashes along the 12.5km section to be upgraded as part of the Project in the last 10 years. Ten of those were serious injury crashes. As recently as May 2017, a truck rolled on this section before a second vehicle crashed into the truck requiring the highway to be closed.
Based on the enclosed briefing paper (Annexure A) outlining timeframe options, if the Minister for Planning does not exercise his discretion under section 20(4) of the Act in respect of the Amendments, it is estimated that the completion of the Project will be delayed by up to 18-36 months. This estimate does not take account of any additional delays associated with any legal challenge brought by any person, including a challenge pursuant to section 39 of the Act which may be brought by a person who is substantially or materially affected by a failure of, among other things, a panel convened pursuant to section 23(1)(b) of the Act or any attempt by a person to seek judicial intervention, preventing the Minister for Planning from making a decision following the receipt of advice from an advisory committee. Any such steps (irrespective of their merits) have the potential to cause delay.
VicRoads has sought the advice of a road safety expert to provide an indication of the consequences that would arise as a result of such a delay. The engineer has reviewed vehicle crash data available for the Western Highway and has considered the impact that duplication of other sections of the Western Highway (already completed by VicRoads in 2015 and 2016) has had on road safety. The results of that analysis are attached to this letter at Annexure B. This analysis reveals, in VicRoads' opinion, a substantial reduction of approximately 60% in the number of people involved in crashes after the completion of the duplication of other sections of the Western Highway. This analysis is consistent with the conclusions expressed in the Environmental Effects Statement prepared in connection with the Project in 2012 that the design features of the construction were 'expected to eliminate a high proportion of existing road safety risks and provide for a higher road safety standard than currently exists' (see section 9.6.3 of the Environmental Effects Statement).
Using this analysis as a guide, it has been estimated that a delay to the completion of the Project:

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