134 Where there is no direct evidence that a decision-maker has failed to take into account a consideration which he or she was obliged to consider, a conclusion that the decision-maker failed to take the relevant matter into account may be established by inference, but the inference should be drawn only after anxious consideration by the court. See Parramatta City Council v Hale (1982) 47 LGRA 319 at 345; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373; Weal at 202 [83].

135 In my opinion, Hanson's original proposal was assessed and authorised without the boundaries of the west pit (or, for that matter, the east pit), being defined with precision. As I have mentioned, Hanson's PER states, relevantly, that:

(a) Figure 1 showed the "general location" of Pioneer No 1 and Pioneer No 2 in relation to surrounding land uses;

(b) the "approximate" layout of Pioneer No 2 workings was shown in Figure 11;

(c) the layout shown in Figure 11 was, of necessity, "general" in that planning for Pioneer No 2 was still "in its early stages" and the details of many elements had yet to be finalised; and

(d) the major features of Pioneer No 2 would, however, be confined within the boundaries shown in Figure 11.

136 Figure 1 (AB 144) is a large scale aerial photograph which shows only the general location of the new quarry (including the west pit and the east pit) and does not contain any contour lines.

137 Figure 2 (AB 145) is a large scale drawing which shows distances from a central point in the new quarry and does not purport to identify precisely its boundaries (including the boundaries of the west pit and the east pit). The drawing is a base map which was reproduced with the permission of the Department of Land Administration.

138 The apparent purpose of Figure 1 was merely to identify the general location of Pioneer No 2. Similarly, the apparent purpose of Figure 2 was merely to identify the general location of Pioneer No 1, the general location of Pioneer No 2, the boundary of Hanson's property, and the general location and proximity of sites of habitation in the vicinity of Pioneer No 2 and their approximate distances from the new quarry.

139 Hanson's PER included Figure 6 (AB 149), which appears to be an enlargement of the base map reproduced for Figure 2. Figure 6 bears an endorsement to the effect that it relates to drainage control and water management. The apparent purpose of Figure 6 was to show the general location of the proposed bund wall and the proposed sedimentation basin abutting Susannah Brook, each of which was to the north of Pioneer No 2. Figure 6 was not intended to delineate the precise boundaries of the west pit or the east pit, even though, relevantly, Figure 6 depicts the polygons which represent the west pit and the east pit.

140 Figure 11 (AB 348) shows the site layout for Pioneer No 2. The polygons representing the west pit and the east pit are depicted, together with the bund wall, the sedimentation basin, branches of the streams leading to Susannah Brook, Susannah Brook itself, a transition line and Toodyay Road. Figure 11 has a scale, but there are no cadastral boundaries, contour lines or grid references. The apparent purpose of Figure 11 was to show the general and approximate layout of the workings for Pioneer No 2. The generality arose as a result of the planning for Pioneer No 2 being in its early stages. Although Hanson's PER asserted (AB 72) that the major features of Pioneer No 2 would be confined within the boundaries shown in Figure 11, the absence of cadastral boundaries, contour lines and grid references creates difficulty in determining the precise boundaries in relation to the landscape.

141 Hanson's PER included Figure 17 (AB 346), which purports to represent the visual impact of Pioneer No 2 on surrounding areas. The apparent purpose of Figure 17 was to demonstrate, by means of a computer generated perspective view of the Pioneer No 1 and Pioneer No 2 sites from the Swan coastal plain, that the quarrying operations at Pioneer No 2 would not be visible from the Swan Valley (AB 110). That assertion was, of course, incorrect.

142 In December 2003, and on instructions from the applicant, Premier Mapping Australia produced a report on photogrammetric survey and data analysis it had carried out in relation to Pioneer No 2 and its impact on surrounding areas including "Teewana". Premier Mapping Australia described itself as "a specialist photogrammetric firm". It explained its methodology (AB 342), as follows:

"A small scale graphical copy of the 'Visual Impact Assessment - Pioneer No 2 Site' (otherwise known as fig. 17 from the original PER) (appendix (a)), and a larger scale print 'Interpreted Surface Geology' (appendix (b)), both showing 'footprints' of the then proposed quarry and related infrastructure bounds, were obtained. Both plans showed some coordinates and/or cadastral boundaries sufficient to enable the derivation of their geographic positions to within several metres. The smaller scale plan was scanned and 'fitted' to the digital cadastre whilst the 'Interpreted Surface Geology' plan was scanned and fitted to the GDA94 adaptation of the barely legible coordinates indicated on the plan.

...

A copy of the 'Site Layout - Pioneer No. 2 Site' (otherwise known as fig. 11 from the original PER) (appendix (c)), was subsequently supplied but was more of a scaled schematic with little actual information as to the absolute geographical location that would have affected the original location derivation as mentioned above."

The Figures 17 and 11 referred to in the report are the Figures 17 and 11 which I have previously mentioned and discussed. Premier Mapping Australia did not rely on Figure 11 to endeavour to identify precisely the intended boundaries of the west pit. Rather, it appears to have relied, for that purpose, on Figure 17, and also on a surface geology map. The apparent purpose for which Figure 17 was included in Hanson's PER was to illustrate the computer generated perspectives of the proposed quarry operations, and not to identify the precise boundaries of the west pit and the east pit. The surface geology map was not included in the PER.

143 Premier Mapping Australia concluded, amongst other things, that:

(a) there is a 94 metre horizontal difference between the southern boundary of the five sided polygon representing the west pit and the actual southern boundary of the west pit; and

(b) the lowest contour on the southern boundary of the five sided polygon representing the west pit is 172 metres, whereas the highest contour on the actual southern boundary of the west pit is about 240 metres. The report states, in this respect (AB 344 - 345):

"The lowest contour (172m) generated from the January 2003 elevation model straddles the bounds of the 'Footprint' on the Southern side and the quarry wall/s rise to the top at around 94 m outside the 'Footprint' to a level of around 240 m (appendix (f)). It is this face around to the centre of the NE facing benches of the quarry that appears to have the major impact on the visibility of the quarry from 'Teewana'. These faces all have a generally northerly aspect and should have been predictable in their impact upon those areas that were omitted in the original study as shown in fig. 17 (appendix (a))."

144 I turn, first, to the alleged vertical difference.

145 An examination of the Department of Land Information ("DLI") map entitled "Pioneer No 2 site Job Number 895" (AB 334) reveals that the southern boundary of the five sided polygon representing the west pit is straddled by the 230 metre contour, and that the highest point on the southern boundary of that polygon is approximately 230 - 235 metres. There is no contour line in the vicinity of the southern boundary of the polygon at, or near, 172 metres.

146 The discrepancy between the conclusion of Premier Mapping Australia on the one hand and the conclusion to be drawn from the DLI map (Pioneer No 2 site Job Number 895) is explicable on the basis of the date on which the contours used by each of them were taken. The contour lines on the DLI map were those which existed in or about December 1989; that is, before quarrying operations commenced at Pioneer No 2. It appears that the contour lines relied on by Premier Mapping Australia were those which existed in or about January 2003; that is, when the quarrying operations at Pioneer No 2 had been conducted for about five to six years.

147 Accordingly, Premier Mapping Australia's conclusion, in relation to the 172 metre level, relates to an excavated level of the quarry at the southern boundary of the five sided polygon. Further, its conclusion does not relate to an excavated level of the quarry at the actual southern boundary of the west pit.

148 The DLI map (Pioneer No 2 site Job Number 895) indicates that the highest point of the quarry is between 235 and 240 metres. That map also indicates that the maximum height of the southern boundary of the five sided polygon is between 230 and 235 metres.

149 The DLI map has an accuracy of "plus or minus 2.75 [metres] vertical". The maximum height difference is therefore about 10 metres and the minimum height difference is nil. In other words, the highest point of the quarry (after allowing for the margin for error) is between about 232.25 metres and about 242.75 metres, whereas the maximum height of the southern boundary of the five sided polygon (after allowing for the margin for error) is between about 227.25 metres and 237.75 metres.

150 The DLI map therefore does not reveal any significant variation in elevation between the intended southern face of the west pit based on the assumption that the five sided polygon was the authorised footprint of the west pit, and the actual southern boundary of the west pit.

151 I turn now to the alleged horizontal difference.

152 The Authority concluded (AB 305), in its report of November 2004 (Bulletin 1152), that the actual southern boundary of the west pit is approximately 82 metres (horizontal distance) outside the southern boundary of the five sided polygon. That approximation is based on maps which have a combined margin for error of plus or minus 13.25 metres in relation to horizontal measurements. If this margin for error is applied to the approximation of 82 metres then, as the Authority noted in its report (AB 305), the actual southern boundary of the west pit is between about 68 metres and about 95 metres south of the southern boundary of the five sided polygon.

153 The Authority found, in its report of November 2004 (Bulletin 1152), that:

(a) the information contained in Hanson's PER in relation to the location of the west pit was indicative only (AB 307);

(b) it is not possible to determine the exact approved location of the west pit (AB 296, 305, 308); and

(c) it is apparent that the southern boundary of the west pit is outside the approved footprint area (AB 296, 307, 308).

In my opinion, the findings set out in subpar (a) and (b) are not consistent with the finding set out in subpar (c).

154 The Minister's letter dated 21 December 2005 states, relevantly:

(a) As to the west pit, and the southern boundary of the west pit (AB 369):

"The [Authority] advised that it is not possible to determine the exact approved location of the west pit as the information contained in [Hanson's] PER is not sufficiently detailed. From mapping undertaken by [the Authority], it concluded that it is likely that the southern boundary of the west pit extends outside the approved footprint area by between 68.25 metres and 95.25 metres."

"It appears that the west pit was part of the original proposal, and is therefore subject to the conditions applying under Ministerial Statement 199. It follows that it is within the authority conferred on me under section 46 of the [Act] to amend the implementation conditions insofar as they apply to the west pit."

"The next aspect of the operation that requires examination is the extension to the west pit. This is a new area of construction to the north-west of the west pit. It appears to be common ground that the extension was not part of the original proposal in 1990.

...

On the information provided to me, it appears that the extension to the west pit was not part of the original 1990 proposal. ..."

155 As I have mentioned, s 45C(2) imposed on the Minister an obligation to consider whether the change to Hanson's original proposal might have a significant detrimental effect on the environment, in addition to, or different from, the effect of the original proposal. See [105] - [119] above.

156 If the Minister concluded that the "southern extension" of the west pit was part of Hanson's original proposal, the Minister was obliged to have regard to the "southern extension" in deciding whether the original proposal has had, or will have, any (and, if so, what) detrimental effect on the environment (in particular, on visual amenity). If, however, the Minister concluded that the "southern extension" of the west pit was not part of Hanson's original proposal, but was part of the change for which approval was sought, the Minister was obliged to have regard to the "southern extension" in deciding:

(a) whether the change "might" (in the sense I have explained) have any (and, if so, what) detrimental effect on the environment (in particular, on visual amenity);

(b) whether any such detrimental effect of the change was additional to, or different from, the detrimental effect (if any) which the original proposal has had or will have; and

(c) whether any such detrimental effect of the change, which was additional to, or different from, the detrimental effect (if any) which the original proposal has had or will have, was significant.

157 I am satisfied, upon an examination of the Minister's letter dated 21 December 2005 as a whole, that:

(a) the Minister found that the "southern extension" of the west pit formed part of Hanson's original proposal and, by implication, rejected the Authority's finding that the "southern boundary" was "outside the approved footprint area"; and

(b) when the Minister, in the letter dated 21 December 2005, refers to the west pit, she means the west pit, as it actually exists, up to and including the southern boundary (but excluding the west pit extension).

158 It was reasonably open to the Minister to find that the "southern extension" formed part of Hanson's original proposal, on the basis that:

(a) the findings of the Authority referred to at [153] above were inconsistent;

(b) the plans depicting the five sided polygon were indicative only, and it was therefore inappropriate to determine the precise approved boundary of the southern face of the west pit; and

(c) if Hanson's PER, the Authority's assessment or the Minister's authorisation had intended to identify and limit the original proposal by reference to the precise location of the five sided polygon in relation to the landscape, a map similar to that approved by the Minister in her letter dated 25 January 2006 would have been produced.

159 Ground B is based on a misapprehension of the Minister's letter dated 21 December 2005. As I have mentioned, the Minister found that the "southern extension" of the west pit formed part of Hanson's original proposal. She rejected the Authority's finding that the "southern boundary" was "outside the approved footprint area". Accordingly, on the Minister's findings, there were no quarrying operations in the "southern extension" which had occurred or were occurring "at a materially increased height when compared with quarrying activities in the approved footprint area", as alleged in ground B.

Ground C: failure properly to apply the test prescribed by s 45C of the Act and taking into account an irrelevant consideration

161 The applicant argues that the s 45C Decision was not authorised by law in that the Minister failed to apply, or properly apply, the test prescribed by s 45C of the Act in making the s 45C Decision, alternatively, the Minister took into account an irrelevant consideration.

162 The applicant asserts that the letter dated 21 December 2005 reveals that the Minister purported to make the s 45C Decision on the basis that the visual impact of the change to Hanson's original proposal did not "pose a significant detrimental effect on the environment" [sic] that was in addition to, or different from, the effect of the original proposal, in that the visual impact of the change was merely a continuation of the impact of the "existing operation". According to the applicant, the "existing operation" referred to by the Minister was the original proposal as actually implemented by Hanson, so that its quarrying operations were visible from outside its property. The applicant contends that, in purporting to apply s 45C(2), the Minister compared the detrimental effect on the environment of the original proposal as actually implemented by Hanson, with the detrimental effect which the change to the original proposal might have on the environment. The applicant submitted that this approach was erroneous. He argued that the proper comparison was between the original proposal with no external visual impact (as contemplated in Hanson's PER and Commitment 22) on the one hand and the visual impact of the changed proposal (that is, the original proposal as implemented and with the changes which were yet to be implemented) on the other. The applicant also submitted, alternatively, that the deficiencies in the assessment of the original proposal (in particular, the visual impact of that proposal) were an irrelevant consideration which the Minister erroneously took into account in making the s 45C Decision.

163 Hanson's original proposal was a project involving the undertaking of quarrying operations, and the establishment of associated facilities, at Pioneer No 2. It was that proposal which was referred to the Authority in January 1990 and assessed by it, and it was that proposal which was authorised by the Minister, subject to various implementation conditions including Commitment 22, pursuant to the 1991 Decision. The implementation of Hanson's original proposal was regulated by those implementation conditions, but they did not themselves define the content of the proposal.

164 As I have mentioned, although the implementation conditions do not define the content of the proposal, they will be relevant to, and should ameliorate, the detrimental impact on the environment which the unconditioned implementation of the proposal would cause. See [98] above. At least where the implementation conditions do not irreconcilably conflict with the content of the original proposal, the Minister, in making his or her evaluation of a proposed change under s 45C, should take into account the implementation conditions in deciding whether the original proposal has had or will have any (and, if so, what) detrimental effect on the environment. See [115] above. A difficult issue will arise where, as in the present case, there is an irreconcilable conflict between the content of the original proposal and an implementation condition (namely, Commitment 22). It is unnecessary, however, to resolve that issue in these proceedings in that Commitment 22 was deleted as an implementation condition (on or about 21 December 2005) before the Minister approved of Hanson changing the original proposal, without a revised proposal being referred to the Authority (which occurred on or about 25 January 2006).

165 As I have mentioned, the Minister found that the "southern extension" to the west pit formed part of Hanson's original proposal, and it was reasonably open to the Minister to make that finding. It is undisputed that the west pit extension was not part of the original proposal.

166 By s 45C(2), the Minister was required, relevantly, to make an evaluation of the effect which Hanson's original proposal, as implemented in fact, has had or will have on the environment. That evaluation is not concerned with the effect which the original proposal would have had on the environment if it had been implemented strictly (or even substantially) in accordance with the original proposal as authorised (including in accordance with the original implementation conditions). See [116] - [118] above.

167 The assessment of Hanson's original proposal predicted that the quarrying operations at Pioneer No 2 would not be visible from outside its property. Commitment 22, which was included in Ministerial Statement 199, stated that the Pioneer No 2 operations will not be visible from ground level outside Hanson's property upon screening bunds and vegetation being established. The predicted visual impact of the quarrying operations was erroneous, and the assessment of the proposal was, in that respect, deficient.

168 It is apparent that the Minister, in making the s 45C Decision, had regard to the detrimental effect which Hanson's original proposal, as implemented in fact, has had or will have on the environment. The detrimental effect in question was, relevantly, that the quarrying operations at Pioneer No 2 could be seen from various points outside Hanson's property, including at various points on the applicant's property. The Minister compared the detrimental effect of the original proposal, as implemented in fact, with the detrimental effect which the proposed change might have on the environment, and found, relevantly, that the proposed change would not have a significant detrimental effect on the environment (in particular, in relation to its visual impact) in addition to, or different from, the effect of the original proposal, as implemented in fact. The Minister properly applied the test prescribed by s 45C.

169 In the letter dated 21 December 2005, the Minister noted the deficiencies in the assessment of Hanson's original proposal. The Minister referred to those deficiencies in the context of explaining why it was that the quarrying operations could be seen from various points outside Hanson's property. The Minister did not, however, take those deficiencies into account in determining whether to approve the proposed change under s 45C(1).

170 The rationale for the s 45C Decision is apparent from the letters dated 21 December 2005 and 25 January 2006. In the letter dated 21 December 2005, the Minister said (AB 373):

"In relation to the current developed area of the west pit extension, I am of the view that the visual impacts do not pose a significant detrimental effect on the environment that is in addition to, or different from, the effect of the original proposal, as the extension is simply a continuation of the impact of the existing operation. In the circumstances, I am prepared to approve a change to the proposal under section 45C that incorporates the current west pit extension, with the result that the conditions applying under Statement 199 apply equally to the extension. I have asked Hanson to immediately prepare plans which precisely define the current area of the west pit extension, and for this to be submitted to me with a view to the extension being incorporated into the original proposal under section 45C."

In the letter dated 25 January 2006, the Minister said (AB 380):

"Having considered the revised plan of the west pit, which describes the current extent of the pit, I consider that the changes will not have a significant effect on the environment in the manner contemplated by section 45C. As a result, I approve of the change to the area of the west pit development in terms of the attached figure, in which the area cross-hatched in red is approved to be developed for quarrying."

Ground D: ulterior purpose in approving retrospectively the quarrying operations

172 The applicant alleges that the s 45C Decision was taken for an ulterior purpose, alternatively taken in reliance on an irrelevant consideration, namely, that s 45C of the Act should be used as a mechanism to approve retrospectively quarrying activities at Pioneer No 2 which had exceeded the "approved footprint area" of the 1991 Decision, by:

(a) changing the original proposal to include those operations; and

(b) making the changed proposal subject to amended implementation conditions pursuant to s 46 of the Act.

173 A decision-maker must exercise a statutory power for the purpose for which it was granted, and not for what is in law an ulterior purpose. A decision made in exercise of a statutory power may be invalid even though its ulterior purpose is not the sole purpose. If the ulterior purpose is a substantial purpose (in the sense that no attempt would have been made to exercise the statutory power if it had not been desired to achieve the unauthorised purpose), the decision is invalid. See Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87 at 106; Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 at 679; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at 55 - 56 [58].

(a) the Minister found, and it was reasonably open to her to find, that the "southern extension" of the west pit formed part of Hanson's original proposal; and

(b) the plans depicting the five sided polygon representing the west pit and the polygon representing the east pit, to which the applicant refers as the "approved footprint area" of the 1991 Decision, were indicative only.

175 The s 45C Decision had three effects. First, it precisely defined the boundaries of the west pit by reference to particular northern and eastern coordinates which appear on the plan referred to in the Minister's letter dated 25 January 2006 (AB 380 - 381). Secondly, it removed from the original proposal the polygon that represented the east pit which, as I have mentioned, had not been quarried. Thirdly, it extended the area authorised for quarrying to include the west pit extension.

176 In any event, there is no direct evidence that the Minister had the alleged ulterior purpose. Further, the evidence before this Court does not warrant an inference that the Minister had any such purpose.

177 However, even if the Minister acted with the alleged ulterior purpose of approving "retrospectively" the quarrying operations which had exceeded the "approved footprint area" of the 1991 Decision, the approval of the change to the original proposal was wholly ineffective to achieve that purpose. The decision in question had effect only on and from the date of approval. See [124] - [126] above.

178 The Minister concluded that the west pit extension was not part of the original proposal, and rejected the Authority's view that the west pit extension had been referred to the Authority under s 38. The non-referral of the west pit extension was not in itself an offence against the Act. See [95] above.

179 The west pit extension was not subject to the original implementation conditions or any other conditions under Pt IV of the Act. The Minister noted (AB 373) that s 45C provided "an effective mechanism by which the environmental impacts of the west pit extension can be subject to legally enforceable conditions", and that if the change to the original proposal were to be approved then the implementation conditions (as amended) would apply to the west pit extension. The Minister stated (AB 374) that she proposed to "extend the conditions applying to the original proposal to the west pit extension". Accordingly, a purpose for which the Minister acted was to ensure that Hanson would, from the date of the approval under s 45C(1), be obliged to comply with the implementation conditions (as amended) in its quarrying of the west pit extension. The s 45C Decision gave effect to that purpose by imposing on Hanson an obligation under s 47(1) which did not previously exist. The Minister's purpose was proper.

181 The applicant argues that the visual amenity enjoyed from his property is being adversely affected by Hanson's operations, in particular, the operations in the "southern extension" and the west pit extension. He contended that the s 45C Decision affected his "rights, interests and legitimate expectations". It was submitted, on behalf of the applicant, that he was not informed, before the s 45C Decision was made, that the Minister was contemplating making the decision and was not given any opportunity to comment. It was also submitted that the applicant had "a right to be involved in this process", and should have been given an opportunity to comment on the course of action which the Minister proposed to adopt and on any submissions made by Hanson to the Minister in relation to her proposed decision.

182 Absent a clear legislative intention to the contrary, a statutory power must be exercised with procedural fairness to parties whose interests might be adversely affected by its exercise. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 27 - 28 [81] - [83].

183 Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Ex parte Lam, per Gleeson CJ at 13 - 14 [37].

184 The application of the law relating to procedural fairness in connection with decision-makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision-making. Rules developed in the context of judicial decision-making cannot be applied automatically to administrative decision-making. See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 343 - 344 [4]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, per Gleeson CJ and Gummow J at 538 [99] - [100], per Hayne J at 561 - 566 [177] - [192]; Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at 460 [70].

185 In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, there was a denial of procedural fairness because the decision in question was made upon information obtained by the decision-maker from another source, without giving the applicant an opportunity to respond to that information. Mason J said, at 582 - 583:

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council [(1976) [1976] HCA 58; 136 CLR 106 at 109]; Salemi [No 2] [Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396 at 419]; Ratu [R v MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 at 476]; Heatley v Tasmanian Racing and Gaming Commission [(1977) [1977] HCA 39; 137 CLR 487 at 498-499]; FAI Insurances Ltd v Winneke [(1982) [1982] HCA 26; 151 CLR 342 at 360, 376-377]; Annamunthodo v Oilfields Workers' Trade Union [[1961] AC 945]. ...

The reference to 'legitimate expectation' makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi [No 2] [at 404] Barwick CJ expressed the view that the expression 'legitimate expectation' adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of 'legitimate expectation' extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley [at 508-509]; FAI [at 348, 351-352, 369, 412]; Attorney-General (Hong Kong) v Ng Yuen Shiu [[1983] 2 AC 629 at 636]. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. ... Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI ... or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v Minister for Civil Service [[1985] 1 AC 374 at 401]. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case."

186 In Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, Deane J said, at 651 - 652:

"The notion of a 'legitimate expectation' which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country (see, eg, FAI Insurances Ltd v Winneke [(1982) [1982] HCA 26; 151 CLR 342, at 348, 351, 361 - 362, 369, 376, 390 - 391, but cf at 412]). The notion is not, however, without its difficulty. For one thing, the word 'legitimate' is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied (see, eg, Salemi v MacKellar [No 2] [(1977) [1977] HCA 26; 137 CLR 396, at 452]; Kioa v West [(1985) [1985] HCA 81; 159 CLR 550, at 563]). In that regard, there is much to be said for preferring the phrase 'reasonable expectation' which has often been used in judgments in this Court. For another thing, the vagueness of the phrase 'legitimate expectation', which enables it to be used as a convenient label for a broad category of circumstances which will give rise to a prima facie obligation to accord procedural fairness, may convey an impression of comprehensiveness with the result that the absence of an identified legitimate expectation is wrongly seen as a legal mandate for disregarding procedural fairness in any case where no legal right in the strict sense is involved. Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to 'the particular statutory framework' (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [(1963) [1963] HCA 41; 113 CLR 475, at 504]), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just."

187 The concept of "legitimate expectation" referred to by Mason J in Kioa and Deane J in Haoucher (and in numerous other authorities) was considered in Ex parte Lam. McHugh, Gummow, Hayne and Callinan JJ held that "legitimate expectation" has limited utility and scope in consequence of it now being accepted that, absent a clear legislative intention to the contrary, a decision-maker must comply with the rules of procedural fairness. McHugh and Gummow JJ, in their joint judgment, at 27 [81], referred with approval to the dissenting judgment of McHugh J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 311 - 312, and the judgment of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 39. In Quin, Brennan J said:

"So long as the notion of legitimate expectation is seen merely as indicating 'the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded' to accord procedural fairness to an applicant for the exercise of an administrative power (see per Mahoney JA in Macrae [(1987) 9 NSWLR 268 at 285]), the notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play. If it were otherwise, the notion would become a stalking horse for excesses of judicial power."

Also see, in Ex parte Lam, the judgment of Hayne J at 37 - 39 [120] - [122], and the judgment of Callinan J at 45 - 48 [140] - [148].

188 Section 45C of the Act is concerned with a change or changes to an original proposal that might have a significant detrimental effect on the environment in addition to, or different from, the effect of the original proposal.

189 The definition of "environment", and those provisions of the Act which are concerned with whether a proposal is likely, if implemented, to have a significant effect on the environment, or with whether a change to an original proposal might, if implemented, have a detrimental effect on the environment, do not focus upon the effect of the proposal or the change to the original proposal on individual persons.

190 Part IV does, however, make provision for some public participation in relation to the referral and assessment of proposals and their implementation.

191 If a proposal is referred to the Authority pursuant to s 38, and the Authority assesses the proposal, the Authority may, for that purpose, with the approval of the Minister and subject to s 42, conduct a public inquiry: s 40(2)(c). Subject to any direction which the Minister may make under s 43 and subject to s 40(5), the Authority may, relevantly, require a proponent's report to the Authority on an environmental review undertaken by the proponent, and any other information provided to the Authority on the proposal in question, to be made available for public review: s 40(4).

192 If the Authority makes a proponent's report or any other information available for public review, the Authority must determine the period within which, the extent to which, and the manner in which public authorities or persons may make submissions to the Authority in respect of that report or other information: s 40(4).

193 By s 42(2), if the Authority conducts a public inquiry under s 40(2)(c), the Authority must incorporate the findings made on the public inquiry in the assessment report which it prepares for the Minister under s 44.

194 Section 43 empowers the Minister, relevantly, to direct the Authority to assess or re-assess a proposal more fully or more publicly or both, as the case requires, in accordance with the direction, and the Authority must comply with that direction.

195 When the Minister receives an assessment report from the Authority, he or she is obliged, relevantly, to publish the report and, if the proposal to which the report relates was referred to the Authority by the proponent or another person, to give a copy of the report to the proponent or the other person: s 44(3).

196 Section 45, which sets out the procedure for deciding on whether a proposal should be implemented, after the Minister has received an assessment report from the Authority, does not provide for or contemplate any participation by any members of the public (including individual persons who may be adversely affected by the implementation of the proposal or any person who has referred the proposal to the Authority) in that procedure or the decision-making process.

197 If the Minister makes a request under s 46(1) that the Authority inquire into and report on whether the implementation conditions relating to a proposal, or any of them, should be changed, the Authority's report to the Minister must be published. After the report is published, the Minister must deal with the question of whether or not the implementation conditions to which the report relates, or any of them, should be changed as if that question were the question of to what conditions and procedures, if any, the implementation of a proposal should be subjected, and the procedure and the decision-making process under s 45 applies to the first-mentioned question accordingly: s 46(8).

198 The concept of a "proposal", as defined in s 3(1), is exceedingly variable. It includes operations, undertakings or developments which differ significantly in their scope, duration and complexity, including the extent to which they are likely adversely to affect the environment. The environmental impact of some proposals will be direct and specific, while others will be indirect and general. Some proposals will be likely to impact upon a particular individual or individuals, while others will affect the public at large or a class of the public.

199 In my opinion, the provisions of Pt IV evince a clear legislative intention that the Minister is not obliged to exercise the power of approval under s 45C with procedural fairness to persons, other than the proponent, whose interests might be adversely affected by its exercise. I am of that opinion for these reasons. First, Pt IV makes provision for some public participation in relation to the referral and assessment of proposals and their implementation, but does not provide for or contemplate any participation by any members of the public in the procedure or decision-making process under s 45, s 45C or s 46. Secondly, persons who may be relevantly affected by the exercise of the power under s 45C are, potentially, numerous and difficult to identify. Thirdly, the power under s 45C is only exercisable if the change or changes to the assessed and approved proposal are minor and will not cause a significantly different detrimental environmental impact.

201 The applicant argues that the s 45C Decision was manifestly unreasonable. The applicant's argument relied on the "cumulative effect" of various complaints made in the context of some of the earlier grounds. In his particulars to Ground F, the applicant contended:

"(a) [The Minister] purports to authorise retrospectively by the section s 45C Decision aspects of [Hanson's] operation that were not authorised by the 1991 Decision.

(b) Those aspects of [Hanson's] operations that were not authorised by the 1991 Decision and that were implemented were in breach of the implementation conditions set in accordance with section 45(5) of the [Act].

(c) In terms of the section 45C Decision, [the Minister] regarded as a 'proposal' or part of a 'proposal', quarrying activities that had already been implemented.

(d) Further, in making the section 45C Decision, [the Minister] was required to form the opinion that changes to the proposal in question might not have a significant detrimental effect on the environment in addition to, or different from, the effect of the proposal the subject of the 1991 Decision.

(e) The proposal the subject of the 1991 Decision was approved by [the Minister] on the condition that the quarrying operation not be visible from ground level outside [Hanson's] property once screening bunds and vegetation are established (Commitment 22 of the 1991 Decision).

(f) [The Minister] reached the section 45C Decision on the basis that the development of [Pioneer No 2], by means of the changes to the original proposal, will increase the visual impact over time ...

(g) The Applicant here repeats particulars [(e) and (f) of Ground B above].

(h) No decision-maker acting reasonably, could have formed the opinion that the increase in the impact on visual amenity by reason of the quarrying activities in the West Pit Extension and the Southern Extension might not constitute a significant detrimental effect on the environment in addition to, or different from, the effect of the proposal the subject of the 1991 Decision."

"(e) Based on the figure of 94m referred to in sub-paragraph [(c)], Premier Mapping concluded that this encroachment over the southern boundary of the West Pit, that is in the Southern Extension, resulted in quarrying activities up to an elevation of some 240 meters [sic] compared to an elevation of some 172 meters [sic] on the southern side of the bounds of the foot print area, producing a height difference of some 68m (page 3 of the Survey Report).

(f) The [Authority] in its Bulletin 1152 referred to the vertical extent of the increase in visibility of the quarrying activities in the Southern Extension and put this, with reference to maps produced by the Department of Land Information, to be, at most, 15.5m (at page 7 of Bulletin 1152)."

202 The applicant relies on "Wednesbury unreasonableness" in relation to ground F and does not challenge the s 45C Decision for "irrationality or illogicality". See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165. It is true, no doubt, that in one sense, "unreasonableness" will often overlap with "irrationality" or "illogicality". See Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004), at 339; Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at 584 [559]. It is unnecessary, in these proceedings, to consider irrationality and illogicality as an independent ground of judicial review or the extent to which that ground is different from Wednesbury unreasonableness. In the present case, the applicant relies upon Wednesbury unreasonableness to attack the Minister's exercise of the discretionary power conferred by s 45C. He challenges a discretionary decision, and not fact-finding or a conclusion which is mandated by statute.

203 In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, the question at issue was whether the imposition of a condition imposed by a licensing authority was so unreasonable as to be beyond the proper exercise of the Authority's powers. Lord Greene MR noted, at 230, that the courts can interfere if the decision of a statutory authority on a competent matter is so unreasonable that no reasonable authority could ever have come to it, but to prove a case of that kind requires "something overwhelming". His Lordship emphasised that unreasonableness, in this context, is not what the court considers unreasonable. The decision in question must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to.

204 In Peko-Wallsend, Mason J noted, at 42, that when the ground of asserted unreasonableness relied upon by an applicant is giving too much or too little weight to one consideration or another "a court should proceed with caution ... lest it exceed its supervisory role by reviewing the decision on its merits". Also see Eshetu per Gleeson CJ and McHugh J at 627 [44].

205 Accordingly, a decision will not be unreasonable in the Wednesbury sense merely because a court disagrees strongly with the decision-maker's process of reasoning in relation to an issue of fact. Further, a decision will not be unreasonable in the Wednesbury sense merely because the decision-maker has given inadequate weight to certain matters and excessive weight to others. As Lord Brightman observed in Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484 at 518:

"Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

206 In the present case, the applicant's contentions in relation to Ground F rely on several matters which I have found, in the context of previous grounds, are misconceived. In particular:

(a) The Minister did not purport to authorise anything retrospectively (particular (a) to Ground F).

(b) The original proposal had not already been fully implemented (particular (c) to Ground F).

(c) The content of the original proposal was not defined by its predicted visual impact (particulars (d) - (e) to Ground F).

(d) It was reasonably open to the Minister to find that the "southern extension" of the west pit was not outside the scope of the original proposal (particular (g) of Ground F, as corrected by par 54 of the applicant's written submissions).

(e) It was reasonably open to the Minister to conclude that there would be no substantial difference between the visual impact of the original proposal, as implemented, and the changed proposal (particular (h) to Ground F).

207 As to particular (b) of Ground F, even if Hanson breached the implementation conditions of the original proposal, that breach did not prevent the Minister from approving of a change to the original proposal. Section 48(4)(e) of the Act provides that the Minister, on receiving a report from the Chief Executive Officer of the Department through which the Act is administered, or a decision-making authority, to the effect that any of the implementation conditions of a proposal is not being complied with, may "if he considers that the relevant condition ... should be changed, make a request under section 46(1)" to inquire into and report on whether the implementation conditions should be changed. The Minister is therefore empowered to change implementation conditions in response to a report that those conditions have been breached. A past breach of implementation conditions relating to a proposal does not prevent the Minister from approving of a change to the proposal itself.

208 As to particular (f) of Ground F, although the Minister said in her letter dated 21 December 2005 that it appeared "the development of the west pit extension will increase the visual impact of [Pioneer No 2] over time" (AB 373), the Minister concluded that the west pit extension "is simply a continuation of the impact of the existing operation" (AB 373). The Minister's evaluation of this point does not, either alone or in conjunction with the other points relied on by the applicant, indicate that the s 45C Decision was manifestly unreasonable in the Wednesbury sense.

209 The Minister did not reach a decision so unreasonable "that it might almost be described as being done in bad faith" or "so absurd that no sensible person could ever dream that it lay within the powers of [the Minister]": Wednesbury at 229. Also see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at 221 [30].

Ground G: s 46 Decision made in relation to a changed proposal

211 The applicant argues that the s 46 Decision is void and of no effect in that it purports to amend implementation conditions which apply to a changed proposal, namely, the original proposal which was changed pursuant to the s 45C Decision, whereas the s 45C Decision is void on the grounds previously relied on by the applicant, and as a result there is no changed proposal.

212 The Minister's decision made on or about 21 December 2005 amended the implementation conditions applicable to the original proposal, and did not approve a change to that proposal. The Minister recognised that the amended implementation conditions would apply to the changed proposal upon the change being approved under s 45C of the Act. The amendment to the implementation conditions took effect, however, before the change to the original proposal was approved. See [87] - [92] above.

Ground H: s 46 Decision and ulterior purpose

214 The applicant argues that the s 46 Decision was made for an ulterior purpose, alternatively it was made in reliance on an irrelevant consideration, namely, that s 46 of the Act should be used as a mechanism by which quarrying activities which went beyond the "approved footprint area" of the 1991 Decision should be made retrospectively subject to the amended conditions.

215 The applicable legal principles relating to ulterior purpose are set out at [173] above.

(a) There is no direct evidence that the Minister had the alleged ulterior purpose. Further, the evidence before this Court does not warrant an inference that the Minister had any such purpose.

(b) The Minister's approval to the amendment of the implementation conditions applying to Hanson's original proposal did not have retrospective effect. See [124] - [126] above.

(c) The Minister's approval of the amendment of the implementation conditions did not purport to, and could not, control the implementation of any other thing than the original proposal. The amended implementation conditions did not apply to the west pit extension until the Minister approved the change to the original proposal which incorporated that extension.

218 None of the applicant's grounds of review has been made out. The order nisi should be discharged.