The Delegate's use of the SPRAT Profile
72 The Delegate applied a section of the SPRAT Profile entitled, "Impact-mitigation options for reducing the risk of fragmentation", which set out dimensions and characteristics that are recommended for culverts in order to allow the passage of Koalas through them. The Delegate concluded (at para 7.36) that while it was possible that the culverts under Yawalpah Road would deter the movement of Koalas through them, that could not be confirmed without undertaking a Koala tracking study.
73 The applicant submits that that the Delegate's application of the SPRAT Profile without disclosing, first, that he intended to do so and, second, the way he intended to use it, amounted to a denial of procedural fairness.
74 As to the second submission, the applicant asserts that the Delegate decided that the non-compliance of the culverts with the guidelines under the SPRAT Profile undermined a conclusion that they are a barrier, when in fact it supported the conclusion that the culverts are a barrier. The applicant submits that the Delegate thereby misconstrued and misunderstood the SPRAT Profile. The applicant's submission seems to be that the use of the SPRAT Profile in a way contrary to its correct meaning without giving the applicant an opportunity to comment was procedurally unfair. The applicant submits that if given that opportunity, it would have provided further material or submissions, and that a different decision might have been made.
75 The respondent submits that the relevance of the SPRAT Profile to the decision was made plain to the applicant in the referral form it completed and, further, that the applicant was clearly aware of its relevance. The respondent submits that the applicant's submissions demonstrate a misunderstanding of the Delegate's reasoning. It is also submitted that the applicant was informed of the "critical issues" on which the decision could turn, and that was the full content of the procedural fairness obligation.
76 Procedural fairness requires that a person impacted by a decision be given an opportunity to deal with adverse information before the decision-maker that is "credible, relevant and significant": Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [17]; Kioa v West (1985) 159 CLR 550 at 628-629.
77 In some circumstances, procedural fairness requires that a decision-maker must go further than merely disclosing adverse information. In Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592, the Full Court held:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
…
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
(Underlining added, citations omitted.)
(Cited with approval in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29] and [32]; BRF038 v Republic of Nauru (2017) 349 ALR 67; [2017] HCA 44 at [59].
78 The obligation may extend to giving the person, "an opportunity to deal with that part of the information which the decision-maker proposed to take into account in arriving at a decision adverse to the interests of the person affected": Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53 at [43].
79 It is necessary to examine the context in which the SPRAT Profile was considered by the Delegate.
80 The Delegate was required to consider whether the Proposed Development would have a "significant impact" on the Koala. The Delegate applied the criteria from the Significant Impact Guidelines. In particular, the Delegate considered whether there was a real chance or possibility that the action would:
adversely affect habitat critical to the survival of the species;
modify, destroy, remove or isolate or decrease the availability or quality of habitat to the extent that the Koala is likely to decline;
reduce the area of occupancy of an important population of Koalas.
81 The Delegate found there was a real chance or possibility that the Proposed Development would have each of these impacts.
82 In considering the criterion of whether there was a real chance or possibility that the Proposed Development would adversely affect, "habitat critical to the survival of the species", the Delegate applied the Koala Habitat Assessment Tool under the Koala Referral Guidelines. The Koala Habitat Assessment Tool identifies five attributes of Koala habitat: Koala occurrence; vegetation composition; habitat connectivity; key existing threats; and recovery value. Each attribute is allocated a score between zero and two. The scores are added together to give a total score out of 10, which provides an indication of the overall value of habitat in the impact area. A score of four or less indicates that the habitat is not critical to the survival of the Koala, while a score of five or more indicates that it is critical.
83 The score that is assessed for "habitat connectivity" depends on whether the impact area is part of a "contiguous landscape", and the size of that landscape. For a coastal area, if there is a contiguous landscape that is greater than 500 hectares, the score is two; if it is between 300 hectares and 500 hectares, the score is one; and if it is less than 300 hectares, the score is zero.
84 The term "contiguous landscape" is defined in the Koala Referral Guidelines to mean:
An area of koala habitat that is greater than 300 ha in the coastal context, or greater than 500 ha in the inland context, which encompasses no barriers but is bounded by barriers.
85 The term "barrier" is defined to mean:
A feature (natural or artificial) that is likely to prevent the movement of koalas. Natural barriers may include steep mountain ranges (cliffs), unsuitable habitats, major rivers / water bodies or treeless areas more than 2 km wide. Artificial barriers may include infrastructure (such as roads, rail, mines, large fences etc.) without effective koala passage measures, or developments that create treeless areas more than 2 km wide.
86 Accordingly, the score for "habitat connectivity" under the Koala Habitat Assessment Tool depended upon whether the Proposed Development site is part of a "contiguous landscape" in excess of 300 hectares. As the Proposed Development area is only 147 hectares, it was necessary to determine whether the site formed part of a "contiguous landscape" together with the Koala Conservation Area. This depended upon whether there were barriers likely to prevent the movement of Koalas between the two areas. The applicant submitted that there were a number of such barriers.
87 Section 2 of the prescribed referral form deals with, "Matters of National Environmental Significance". The prescribed form states:
The following resources can assist you in your assessment of likely impacts:
• Profiles of relevant species/communities (where available), that will assist in the identification of whether there is likely to be a significant impact on them if the proposal proceeds;
• Significant Impact Guidelines 1.1 - Matters of National Environmental Significance;
…
88 The first dot point was hyperlinked to documents including the SPRAT Profile. The second dot point was hyperlinked to the Significant Impact Guidelines. The SPRAT Profile contained a hyperlink to the Koala Referral Guidelines.
89 In the completed Referral Form submitted to the Department, the applicant addressed the Koala Referral Guidelines, including the Koala Habitat Assessment Tool. The applicant stated in the Referral Form that, "[a] recent assessment hereunder by Planit of the referral site against the Koala Habitat Assessment Tool also determined that the referral site does not contain critical habitat to the survival of this species". The Referral Form went on to address the five attributes of Koala habitat. As to "habitat connectivity", the Referral Form asserted that there was no contiguous landscape of sufficient size.
90 It appears that the Department sent correspondence to the applicant on 16 March 2018 indicating a preliminary view that the site contained critical habitat and that the Proposed Development would have a "significant impact" on the Koala. That correspondence is referred to in the first sentence of the 2018 Planit Report, which went on to make submissions addressing the preliminary view. The correspondence is also referred to in the report of Planit Consulting Pty Ltd provided to the Department on 3 April 2018, entitled, Supplementary Species Assessment Report - Polaris Coomera Pty Ltd - Coomera Woods Master Planned Development (EPBC2017/8134). Surprisingly, the correspondence of 16 March 2018 is not in evidence.
91 The 2018 Planit Report contended that the habitat in the Proposed Development site should be given a total score of four under the Koala Habitat Assessment Tool, indicating that it was not critical to the survival of the Koala. It was submitted that the "habitat connectivity" score should be assessed as zero, on the basis that the Proposed Development site was not part of any "contiguous landscape" exceeding 300 hectares.
92 To reiterate, the Koala Conservation Area was to the north-east of the Proposed Development site. Yawalpah Road runs between the Koala Conservation Area and a "conservation corridor" that connects with the Proposed Development site. Effectively, the Koala Conservation Area and Proposed Development site were divided by Yawalpah Road.
93 The 2018 Planit Report argued that there were barriers to the movement of Koalas from the Koala Conservation Area to the Proposed Development site so that they were not part of a contiguous area. The report argued that the one-direction fauna exclusion fencing on the northern side of the Yawalpah Road reserve was a barrier. In addition, the report argued that Yawalpah Road itself was a barrier. In that context, it was contended that culverts running under Yawalpah Road would not allow Koalas to make their way under Yawalpah Road from the north and into the Proposed Development site. The 2018 Planit Report stated:
There are a series of hydraulic culverts within the ecological corridor and crossing underneath Yawalpah Road. Council road design drawings show that the culverts are 1.8m in diameter. The culverts extend under the Yawalpah Road embankment and are approximately 40m long.
The length of piping and absence of fauna furniture and permanent inundation would preclude movements through them by koalas from the conservation areas to the ecological corridor.
The culvert outlets are located north of the Yawalpah road reserve boundary and thus north of the one direction fauna exclusion fence. The culverts are partially submerged and aquatic plants are growing at both the inlet and outlet of the culverts, indicating that the culverts are permanently submerged (refer to Figure 7). Koalas cannot cross through the culverts and move from the north to the south.
94 The 2018 Planit Report contended that as there was no contiguous area of more than 300 hectares, the score for "habitat connectivity" under the Koala Habitat Assessment Tool should be zero.
95 The 2019 Planit Report also addressed the Koala Referral Guidelines and the Koala Habitat Assessment Tool. That Report asserted, relevantly, that Yawalpah Road forms an artificial barrier and has no Koala passage, and that the score for "habitat connectivity" should be zero. The 2018 and 2019 Planit Reports submitted that the total score should be four, indicating that the affected habitat was not critical.
96 In applying the Koala Habitat Assessment Tool to determine whether the Proposed Development would adversely affect habitat critical to the survival of the Koala, the Delegate assessed the total score at seven. In arriving at that score, the Delegate assessed the score for "habitat connectivity" at two, deciding that the Proposed Development, together with the Koala Conservation Area were a "contiguous landscape" of greater than 500 hectares. In reaching that conclusion, the Delegate addressed the arguments made in the 2018 and 2019 Planit Reports about barriers between the Proposed Development site and the Koala Conservation Area.
97 As an aside, the 2018 and 2019 Planit Reports seemed to accept that Koalas could cross from the Proposed Development site into the Koala Conservation Area, but not the opposite way. The parties implicitly proceeded on the basis that a two-way connection is required. The parties' focus was upon whether Koalas could travel south or south-west out of the Koala Conservation Area and into the Proposed Development site.
98 The 2018 and 2019 Planit Reports contended that the barriers included one-direction Koala exclusion fences, the College and an adjacent residential development and Yawalpah Road. It was also argued that the culverts would not allow the passage of Koalas under Yawalpah Road because the culverts were too long (40 m) and too narrow (1.8 m) and were permanently, partially flooded, while lacking "fauna furniture".
99 These arguments concerning the culverts were evidently intended to engage the section of the SPRAT Profile entitled, "Impact-mitigation options for reducing the risk of fragmentation", and were understood as such by the Delegate. That section of the SPRAT Profile describes measures that can be taken to reduce the risk of a Koala population becoming fragmented because of artificial barriers. The measures include the construction of bridges, land bridges and road tunnels. One measure is described as, "Underpasses (reinforced concrete box cell culverts)". They are defined as:
…one or more adjacent, enclosed channels below the road formation and typically located where drainage along a watercourse is required. Culverts are laterally square (box culvert), rectangular or semi-circular in shape.
100 The SPRAT Profile recommends the following dimensions and characteristics for culverts to allow the passage of Koalas:
So that Koalas will be able to move through, a culvert should be:
• a maximum 40 m in length
• a minimum 2.4 m in height and width, and
• have a low-flow channel incorporated in the design, especially if they are a combined drainage and Koala-impact-mitigation structure.
101 The SPRAT Profile also states that benches should be installed longitudinally along underpasses, well above the average water level, to allow Koalas to walk along the benches. This appears to be what the 2018 Planit Report was referring to when it described an absence of "fauna furniture".
102 In his reasons, the Delegate addressed the applicant's argument that Koalas are unable to pass through the culverts, as follows:
7.35 With respect to the hydraulic culverts, I noted that the Species Profile and Threats (SPRAT) Profile for the Koala states that a culvert should be a maximum 40 metres in length, a minimum of 2.4 metres in height and width, and have a 'low-flow channel incorporated in the design, especially if they are a combined drainage and Koala-impact-mitigation structure'.
7.36 The hydraulic culverts underneath Yawalpah Road do not meet these specifications, as they are only 1.8 metres in width (according to Planit Consulting's report of 7 May 2018). While it is possible that the design of the culverts under Yawalpah Road would deter Koalas from using them to move along the conservation corridor, I considered that it would not be possible to confirm whether Koalas are in fact deterred by the culverts without undertaking a Koala tracking study in that area.
7.37 After considering the information provided by Planit Consulting, I was of the view that:
a. although the fence at the interface between the Gainsborough Greens residential development and a Koala conservation area, and the fence along Gainsborough Drive, are likely to limit the movement of Koalas into the Gainsborough estate, it is not clear that those fences would limit Koala movement into the conservation corridor;
b. although the fence installed along Yawalpah Road is likely to limit Koala movement into the conservation corridor, I do not consider this fence is a complete barrier to Koala movement, noting the evidence that this force is not being maintained in accordance with the Queensland Department of Transport and Main Roads' Fauna Sensitive Road Design Manual (Volume 2: Preferred Practices); and
c. although it is possible that the hydraulic culverts under Yawalpah Road would prevent Koala movement into the conservation corridor, this could only be definitively known by undertaking a Koala tracking study.
7.38 Accordingly, I did not consider that the information provided by Planit Consulting in its report of 7 May 2018 was sufficient to allow me to conclude that there are barriers that in fact prevent Koala movement between the proposed site and large areas of contiguous habitat located to the north east of the proposed site.
103 The Delegate went on to consider whether Yawalpah Road was a barrier, and concluded (at 7.43(b)) that it was not, as Koalas are capable of crossing two-lane roads. The Delegate determined that it was possible for Koalas to cross Yawalpah Road and move into the Proposed Development site through the "conservation corridor" to the north-east of the site, or through a vegetated area along the College fence line, or a strip of vegetation to the north-west of the site.
104 The Delegate concluded that the Proposed Development site and the Koala Conservation Area formed a "contiguous landscape" of more than 500 hectares (at paras 7.47 and 7.61). The Delegate assessed the score for "habitat connectivity" at two. Taking into account the Delegate's scoring of the other habitat attributes, the total score under the Koala Habitat Assessment Tool was assessed at 7 (at para 7.73). As the total score exceeded five, it indicated that the Proposed Development site should be considered critical to the survival of the Koala (at para 7.73). In reaching that conclusion, the Delegate also took into account that the Proposed Development would result in the direct loss of 135.5 hectares Koala habitat and an ongoing impact on the remaining ten hectares (at para 7.76).
105 The applicant's submission that the Delegate failed to disclose that he may rely on the SPRAT Profile has no substance. The prescribed form described the SPRAT Profiles as a resource that could assist the applicant in its assessment of likely impacts, and hyperlinked the SPRAT Profiles. The applicant implicitly referred to the SPRAT Profile in the Referral Form and the 2018 Planit Report when referring to the recommended dimensions for culverts. Accordingly, the applicant was aware of the SPRAT Profile and that it could be relevant to the decision. In circumstances which include that the applicant had engaged a firm of expert environmental consultants who were plainly aware of the SPRAT Profile, the applicant's submission that procedural fairness required the Delegate to more specifically indicate that he may reply upon the document is fanciful.
106 The applicant's next submission is the Delegate should have disclosed the way he proposed to rely on the SPRAT Profile, in particular, the section entitled, "Impact-mitigation options for reducing the risk of fragmentation", dealing with recommendations for dimensions and characteristics of culverts. That submission must also be rejected. The effect of the 2018 and 2019 Planit Reports was to assert that Yawalpah Road itself formed a barrier to the passage of Koalas, and that the culverts under Yawalpah Road did not alleviate the effect of that barrier as Koalas could not pass through them. The applicant asserted that the culverts could not be traversed because they were only 1.8 m in diameter and were approximately 40 m long, referring to the guidelines in the SPRAT Profile. The Delegate considered this argument, but decided that although it was possible that the culverts would prevent Koala movement this could only definitively be determined by a Koala tracking study. It may be noted that the applicant had also argued that, as the culverts were permanently, partially submerged, Koalas could not pass through them, but the Delegate did not expressly address this argument, as will be discussed later in these reasons.
107 The applicant's submission is premised upon a proposition that the Delegate misconstrued and misunderstood the SPRAT Profile by deciding that the fact that the culverts do not comply with the guidelines undermined any conclusion that they are a barrier. The Delegate made no such finding. The Delegate found that the fact that the culverts did not have the dimensions and characteristics recommended by the SPRAT Profile made it possible that Koalas would be unable to travel through them. In so finding, the Delegate did not accept the argument raised in the 2018 Planit Report that Koalas could not pass through. The finding demonstrates no misconstruction or misunderstanding of the SPRAT Profile. The applicant's submission that the Delegate's failure to draw his misunderstanding or misapplication of the SPRAT Profile to the applicant's attention amounted to a denial of procedural fairness cannot be accepted.
108 Further, even if it is assumed that the Delegate misunderstood or misapplied the SPRAT Profile when finding that it was merely possible that Koalas could be prevented from moving through the culverts, any such error was ultimately immaterial to the Decision. The issue the Delegate was concerned with was "habit connectivity", including whether Yawalpah Road was a barrier to the passage of Koalas from the Koala Conservation Area to the Proposed Development site. The Delegate resolved this issue by deciding that Koalas were capable of crossing Yawalpah Road itself (at paras 7.34, 7.43(b)). There has been no challenge to that finding. Once the Delegate decided that Koalas could cross Yawalpah Road, whether or not they could also pass under Yawalpah Road through the culverts became irrelevant. Even if the Delegate had decided that the culverts were impassable, the Delegate would still have given a score of two for "habitat connectivity" under the Koala Referral Guidelines.
109 In addition, any error in the Delegate's conclusion that the "habitat connectivity" score was two could have made no ultimate difference to the Decision. That was because the Delegate scored the "recovery value" of the habitat at one, rejecting the applicant's contention that the score for that attribute should be zero. Although the applicant points out that the Delegate took into account the connectivity of the Koala Conservation Area and the Proposed Development site in giving the score for "recovery value", there has been no challenge to the finding that Koalas were able to cross Yawalpah Road. Even if the score for "habitat connectivity" were disregarded, the Delegate would have arrived at a total score of five, a level that indicated that the habitat in the Proposed Development site was critical.
110 Even if it is assumed that the Delegate denied the applicant procedural fairness in the manner alleged, that denial would have made no difference to the outcome of the Decision. That has two consequences. First, the grant of relief under s 16 of the ADJR Act is discretionary, and the Court would refuse relief where the error is immaterial. Second, the grant of relief under s 39B of the Judiciary Act requires jurisdictional error, and there is no jurisdictional error where an error is immaterial. Therefore, relief would not be granted.
111 The ground of denial of procedural fairness on the basis of the Delegate's use of the SPRAT Profile cannot succeed.