Save Beeliar Wetlands (Inc) v Commissioner of Main Roads

1. The applicant's interlocutory application for an interlocutory injunction is dismissed.
2. By 4.00 pm on 12 January 2017, the applicant is to file and serve submissions on the question of costs.
3. By 4.00 pm on 17 January 2017, the respondents are to file and serve any submissions in response.
4. This matter is adjourned for further directions and hearing on a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SIOPIS J: 1 The applicant, an incorporated association, Save Beeliar Wetlands (Inc) applies for an interlocutory injunction until trial or further order, to enjoin the carrying out of construction and associated works over an area of land designated for the construction of the extension of the Roe Highway from the current terminus of Roe Highway at the Kwinana Freeway in Jandakot, to Stock Road in Coolbellup in Western Australia. More specifically, the interlocutory injunction seeks to preclude the carrying out of such work as affects the habitat of the Carnaby's black cockatoo and the forest red tailed cockatoo. It is common cause that the Carnaby's black cockatoo and the forest red tailed cockatoo are endangered species of birds. 2 The construction work has adverse environmental impacts, and is the subject of an approval, dated about 21 October 2015, granted to the first respondent, the Commissioner of Main Roads for Main Roads Western Australia, by a decision maker with delegated authority from the third respondent, the Minister for the Environment and Energy for the Government of the Commonwealth of Australia (the Minister). 3 The approval was granted pursuant to sections 130(1) and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (the Act). 4 As a part of that approval, the Minister required compliance with sixteen conditions. 5 For the purpose of this application, it is necessary to refer to conditions 7 to 9 of the approval. These conditions state as follows: Offsetting of residual impacts 7. To offset the loss of black cockatoo habitat, prior to commencement, the approval holder must provide the Department with written evidence that funds have been provided to the DPAW for the acquisition of an environmental offset property. The written evidence must include a description and map clearly defining the location and boundaries of the offset property and be accompanied with the offset attributes and a shapefile. 8. Within 12 months of the commencement of the action, the approval holder must provide the Department with written evidence, including certificates of title, that the offset property has been transferred to the State of Western Australia for the purpose of addition to the conservation estate. 9. Within 5 years of the commencement of the action, the approval holder must provide funds to DPAW to assist in the management of the offset property following the transfer of the land as described in condition 8. The funding must be adequate for DPAW to maintain the quality of black cockatoo habitat within the offset property for at least 20 years. The approval holder must consult with DPAW, in determining the amount of necessary funding to achieve the aims of this condition. Once the funding has been provided to DPAW, the approval holder must provide written evidence of this to the Department. 6 On 30 November 2016, the Commissioner, in purported compliance with condition 7 forwarded materials to the Commonwealth Department of the Environment. Those materials identified as the nominated offset property, the areas of land referred to as the Lake Clifton offset site and the Nirimba offset site. The materials also included expert opinion relating to the characteristics of the habitat of those proposed offset sites. 7 Construction work on the Roe Highway extension commenced on 5 December 2016 and continued until a temporary cessation on 21 December 2016. Work has not yet re-commenced. 8 On 30 December 2016, the applicant commenced this proceeding seeking declarations as to the proper construction of condition 7, and, further, seeking a final injunction precluding the Commissioner from carrying out or continuing to carry out the construction works on the Roe Highway extension site until there had been compliance with that condition. 9 The applicant contended that, on its proper construction, condition 7 requires that, as a condition precedent to the commencement of the construction works, the Commissioner produce to the Department evidence, which establishes, on an objective basis, that the proposed offset properties contain at least 523 ha of black cockatoo habitat with similar or better quality than the black cockatoo habitat being impacted by the construction works (which I will refer to as "the specified black cockatoo habitat standard"). 10 Alternatively, the applicant contended that, on its proper construction, condition 7 requires that, prior to the commencement of the construction works, the Minister or the Minister's delegate be satisfied on the basis of the evidence presented by the Commissioner, that the offset property or properties were of the specified black cockatoo habitat standard. 11 The applicant went on to contend that the evidence presented to the Minister by the Commissioner did not demonstrate that, as a matter of objective fact, the nominated offset properties met the specified black cockatoo habitat standard. 12 In support of that contention, the applicant relied upon the expert evidence of Ms Catherine Tauss and Professor William Stock. In summary, their evidence is to the effect that materials produced by the Commissioner to the Minister, did not demonstrate that, as a matter of objective fact, the offset properties nominated by the Commissioner, met the specified black cockatoo habitat standard. 13 Further, the applicant contended that the Minister or the Minister's delegate had not, prior to the commencement of the works, formed the view that, he or she was satisfied, on the evidence provided by the Commissioner, that the nominated offset properties met the specified black cockatoo habitat standard. 14 Accordingly, contended the applicant, the Commissioner has failed to comply with condition 7. 15 Section 142 of the Act provides that a person to whom a condition in an approval applies is to comply with the condition. This is a civil penalty provision which renders a person who fails to comply with a condition, liable to a civil penalty. The failure to comply with a condition does not invalidate the approval. 16 In addition, s 475 of the Act relevantly provides that on the application of the Minister or an interested party, the Court may grant an injunction where there has been a contravention of the Act. Section 475 provides that the Court may grant a prohibitory or a mandatory injunction. 17 As mentioned, the applicant, as an interested party, applies, on the basis of the alleged contravention of condition 7 by the Commissioner, for, as final relief, declarations as to the proper construction of condition 7, and a prohibitory injunction restraining the re-commencement of work on the Roe Highway extension until condition 7 of the approval is satisfied. 18 The applicant applies for this interlocutory injunction, restraining the recommencement of the Highway extension until the trial of its application, or further order. The principles to be applied 19 The principles for the grant of an interlocutory injunction were recently summarised by Crennan J as follows in the case of Plaintiff M168/10 v Commonwealth of Australia (2011) 279 ALR 1 at [15] and [19]: [15] In Australian Broadcasting Corporation v O'Neill, in a joint judgment, Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed on the point) restated that the applicable principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. There, this court (Kitto, Taylor, Menzies and Owen JJ) said that there are two main inquiries to be undertaken. The first inquiry, which is particularly relevant to these cases, is described thus: The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The court continued: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order [the plaintiff] seeks. …. [19] It may be as well to mention that the second inquiry to be made in respect of an application for an interlocutory injunction is an inquiry into what is commonly encompassed by the expression "the balance of convenience", about which the parties in these cases are not in dispute. Serious question to be tried 20 I deal first with the question as to whether there is a prima facie case, or, as it is also often described, a serious question to be tried. 21 This is a case where the interlocutory injunction which the applicant seeks has serious practical consequences for the progress of a large road construction project which has consumed, and is likely to consume, substantial public funds. Accordingly, the observations of the High Court in Beecham, referred to by Crennan J above, as to the importance of assessing the strength of the applicant's case in determining whether there is a serious question to be tried, are germane. 22 In other words, the degree of probability that the applicant's case will succeed at trial, will be assessed by reference to the fact that serious consequences will attend the impediment to the progress on the Roe Highway extension, by the grant of the interlocutory injunction sought by the applicant. 23 The first issue, therefore, is to assess the strength of the applicant's case that, on its proper construction, condition 7 imposes as a condition precedent to the commencement of the works, a requirement that the Commissioner produce to the Department evidence as to the characteristics of the habitat of the nominated offset property which establishes, on an objective basis, that the nominated offset property or properties meet the specified black cockatoo habitat standard. Alternatively, that the Minister or the Minister's delegate be satisfied, prior to the commencement of the works, that on the basis of the evidence provided by the Commissioner, that the nominated offset property or properties meet the specified black cockatoo habitat standard. 24 The applicant contended that its construction of condition 7 is to be preferred because it provides for the better securing of the offset properties before the commencement of the works and the attendant destruction of the existing black cockatoo habitat at the site of the works. This construction, contended the applicant, gives effect to the object of the Act which is to protect endangered species. 25 In my view, the applicant's contention as to the construction of condition 7, when considered in the context of the serious consequences which would flow from the grant of the interlocutory injunction, does not have sufficient strength to warrant being characterised as giving rise to a serious question to be tried. I say this for the following reasons. 26 In my view, neither the language of condition 7 nor the underlying scheme of the conditions, supports the construction of condition 7 contended for by the applicant. 27 As to the language of condition 7, the language is specific as to the nature and format of "the evidence" and information which is to be provided by the Commissioner in compliance with that condition. That language simply does not refer to any requirement on the Commissioner to provide material or information which establishes on an objective basis that the nominated offset property meets the specified black cockatoo habitat standard. 28 The condition expressly requires that the Commissioner provide "written evidence that funds have been provided to the [Department of Parks and Wildlife] for the acquisition of an environmental offset property." That calls for evidence of a transfer of funds. The condition then goes on to specify what the written evidence "must" include. These items are a description and map clearly defining the location and boundaries of the nominated offset property. Further, the condition requires that the map be accompanied with the "offset attributes and a shapefile". The term "offset attributes" is a defined term which refers to an Excel file which contains certain specified information. That specified information does not include material or information which would establish on an objective basis that the nominated property identified in the map meets the specified black cockatoo habitat standard. Nor would one expect such extensive information, likely to comprise expert reports running perhaps to hundreds of pages, to be provided in the form of an Excel file. Likewise, the term "shapefile" is also defined in a manner which does not include information or material which would establish on an objective basis that the property identified in the map meets the specified black cockatoo habitat standard. 29 It is apparent from the foregoing, that the language of condition 7 goes to some specificity in describing the information to be provided to the Department, and the format in which such information is to be provided, in compliance with that condition. 30 In light of the specificity of that language, it is apparent that, if it was intended that the Commissioner was obliged to provide information or material as to the habitat of the nominated property for the purpose of establishing objectively that that property satisfied the specified black cockatoo habitat standard, condition 7 would have specifically said so. 31 Further, there is nothing in the language of condition 7 which refers to a requirement that the Minister or Minister's delegate be "satisfied", whether on the basis of evidence supplied by the Commissioner or otherwise, that the nominated property meets the specified black cockatoo habitat standard. 32 In this respect, the language of condition 7 is to be contrasted with the language in condition 13 which specifically refers to the Minister being "satisfied". In my view, had the draftsperson intended that the Minister or the Minister's delegate be satisfied, as a precondition to the commencement of the works, that the nominated offset property met the specified black cockatoo habitat standard, the draftsperson would have said so. 33 In considering the scheme of the conditions, it is necessary to have regard to conditions 7, 8 and 9 - all of which deal with the issue of acquiring and establishing an offset property or properties. 34 When those three conditions are considered together, it is clear that the conditions contemplate that there will be a staged process over a period of five years for the acquisition and establishment of an offset property or properties which meet the specified black cockatoo habitat standard. 35 The process is a three stage process which commences with the proponent providing, prior to the commencement of the works, evidence of funding being available to acquire a property which the proponent believes meets the specified black cockatoo habitat standard, which it identifies by reference to a map describing its geographical location. 36 The second stage, which is to be completed by 12 months after the commencement of the works, is for the proponent to acquire title to a property or properties which meet the specified black cockatoo habitat standard. 37 The third stage, which is to be completed within five years of the commencement of the works, is for the proponent to provide funds to the Department of Parks and Wildlife to assist in the management of the offset property or properties. The funding must be adequate for the Department of Parks and Wildlife to maintain the quality of the black cockatoo habitat within the offset property or properties for at least 20 years. 38 It is important to observe that the process leading to the establishment of the offset property or properties identified in conditions 7, 8 and 9, is a five-year process which is to take place concurrently with the undertaking of the construction works for the extension of the Roe Highway. 39 The scheme of conditions 7, 8 and 9, therefore, is to prescribe milestone dates by which certain events are to occur. In that context, it is apparent that the words in condition 7 "prior to commencement" do not, as contended for by the applicant, prescribe a condition precedent, but rather identify a time by which the prescribed written evidence is to be provided. 40 Further, the conditions do not prescribe a process whereby the Minister is to assess compliance with the requirement in condition 8 that the Commissioner acquires an offset property or properties which meet the specified black cockatoo habitat standard. The only stipulation is that the property or properties are to be acquired within 12 months of the date of the commencement of the works. Practical commercial considerations would suggest that the assessment process be completed in sufficient time for the Commissioner to acquire an offset property or properties which meet the specified black cockatoo habitat standard, before the expiry of the 12-month period. However, I observe, in passing, that the Minister has the power to vary the conditions to extend the time. 41 Therefore, it is open to the Minister, perhaps in consultation with the Commissioner, to determine the content and timing of the assessment process. The Minister may, for example, as part of the assessment process, call upon the Commissioner to provide evidence to show that the nominated property (or, indeed, some alternative property that may be nominated during the assessment process) meets the specified black cockatoo habitat standard. Or, the Minister may perhaps invoke the audit process provided for in the conditions to assess the habitat of the proposed offset property. Or the Minister may perhaps proceed by both the evidence production and the audit means, or by some other means. 42 However, it is apparent that the conditions do not prescribe a compulsory regime whereby the Commissioner has, by a certain date, to provide the Minister with written evidence proving that the property nominated in the condition 7 map (or indeed any other property) meets the specified black cockatoo habitat standard. 43 Further, the grant of an injunction, and the terms on which it is granted, is discretionary. Accordingly, the fact that the approval contemplates that the process for the acquisition and establishment of the offset property or properties is to occur concurrently with the undertaking of the construction works, substantially undermines the prospect that the applicant would be granted as final relief an injunction which enjoined the undertaking of further construction work on the project, rather than an injunction which compels compliance with the requirement for the establishment of an offset property or properties which meet the specified black cockatoo habitat standard. 44 In this regard, I observe that there is no evidence before the Court that there is no land available which could meet the specified black cockatoo habitat standard. I also observe that the failure to comply with a condition of approval does not render the approval invalid. 45 As I have mentioned, I find that the strength of the applicant's case is not sufficient to be characterised as constituting a serious question to be tried on the question of the construction of condition 7. Balance of convenience 46 In relation to the balance of convenience, the applicant adduced evidence by way of an affidavit from Mr Philip Gleeson, a solicitor in the firm of solicitors representing the applicant, which annexed a copy of the construction contract for the works and a press release from the leader of the opposition in Western Australia stating that, should the Labor Party be elected in the forthcoming state election, the government would terminate the construction contract and the Roe Highway extension project. 47 The applicant did not proffer an undertaking for damages, relying on the contention that the application that it brought was in the public interest. 48 The first respondent adduced evidence by way of an affidavit from Mr Leo Coci. Mr Coci deposed that the grant of the interlocutory injunction sought by the applicant would interrupt the construction work which would in turn give rise to wasted expenditure of around $1 million a week. This figure said Mr Coci did not take account of any further consequential losses which may later arise in relation to delays in completing the work. Further, Mr Coci said that the completion of the Roe Highway extension works would relieve traffic congestion in a number of areas, including the access to the Fiona Stanley Hospital. This, said Mr Coci, would deliver a public benefit. Mr Coci went on to say that the delay in the completion of the works which would be caused by the grant of the interlocutory injunction, would have the attendant consequence of delaying the delivery of the public benefits which he identified. 49 Further, during the hearing, the Commissioner tendered the following undertaking to the Court: UNDERTAKING BY COMMISSIONER OF MAIN ROADS (FIRST RESPONDENT) The First Respondent undertakes to this Honourable Court that if this Honourable Court: (a) does not grant an interlocutory injunction as sought by the Applicant or at all; and (b) subsequently decides that condition 7 of the Approval EPBC 2009/0531 made under sections 130(1) and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Approval) has not been fulfilled because the property identified in the Roe Highway Extension land Acquisition and Management Plan (the Plan Property) do not contain at least 523 hectares of black cockatoo habitat with similar or better quality than the black cockatoo habitat being impacted by the action (the Decision), the First Respondent will: (c) identify additional property (the Additional Property) which, taken with the Plan Property, contains at least 523 hectares of black cockatoo habitat with similar or better quality than the black cockatoo habitat being impacted by the action to the satisfaction of the Third Respondent; (d) for that purpose, provide written evidence to the Third Respondent in respect of the Additional Property of the kind required by condition 7 in respect of the offset property to which that condition relates and such further evidence as the Third Respondent may require in order to determine whether he or she is so satisfied; and (e) continue to identify additional property in accordance with paragraphs (c) and (d) of this undertaking until the Third Respondent is so satisfied: and once the Third Respondent is so satisfied: (f) comply with conditions 8 and 9 of the Approval on the basis that the Plan Property and the Additional Property together constitute the offset property to which those conditions relate; and (g) otherwise comply with the Approval on that same basis. In this undertaking, the underlined terms have the meaning set out in the Approval under the heading 'Definitions'. (See Annexure A). I confirm I am authorised to give this undertaking on behalf of the Commissioner of Main Roads. (signed) Peter Woronzow A/MANAGING DIRECTOR OF MAIN ROADS 50 In proffering the undertaking to the Court, senior counsel for the Commissioner advised the Court that the Commissioner proffered such an undertaking on the basis that such an undertaking would be fulfilled. In other words, that there was land available for a compliant offset property or properties to be established, even if some, or all of, the land in the nominated offset properties was not compliant. 51 During argument, senior counsel for the applicant pointed to the fact that the construction contract vested a power in the Commissioner to suspend works. However, the force of this point is substantially diminished by the fact that the contract goes on to provide that where the Commissioner suspends works under the contract, the Commissioner is liable for specified costs arising from the suspension of the contract. 52 Senior counsel for the applicant also criticised the evidence of Mr Coci stating that Mr Coci did not describe in sufficient detail the basis upon he derived the sum of $1 million per week as wasted expenditure. There is some substance in this criticism of Mr Coci's evidence. However, Mr Coci was not cross-examined, and it is apparent from the terms of the construction contract that the suspension of the construction works will result the Commissioner incurring liability for wasted costs, which liability the Commissioner would not otherwise have incurred. In the absence of cross-examination of Mr Coci, and in the absence of any contradictory evidence, I am prepared to find that a suspension of the works will result in the Commissioner incurring liability for wasted costs in a substantial amount. 53 The applicant contended that the balance of convenience weighed in favour of the applicant because the resumption of the construction works would result in irreparable harm, namely, the destruction of the black cockatoo habitat affected by the construction works. 54 For the following reasons, I am of the view that the balance of convenience favours the respondents. 55 First, even if I am wrong in my view that the applicant's case does not give rise to a serious question to be tried, nevertheless, the strength of the applicant's case is weak. 56 Secondly, in the event that the applicant failed at trial to secure a final injunction, the grant of the interlocutory injunction would have caused the Commissioner to have incurred liability for a substantial amount of wasted costs. Further, there is no undertaking as to damages. 57 Thirdly, there is an alternative remedy available to the applicant at trial which gives effect to its concerns that an offset property or properties be established which meet the specified black cockatoo habitat standard. That alternative remedy is a mandatory injunction requiring the respondents to give effect to the conditions in the approval which provide for that to happen. As mentioned, there is no evidence before the Court that there is not sufficient land available to permit effect to be given to the establishment of the offset property regime provided for in the conditions of the approval. 58 Fourthly, in any event, the undertaking of the first respondent will procure that effect is given to the establishment of an offset property or properties which meet the specified black cockatoo habitat standard. 59 Fifthly, I place no weight on the evidence comprising the press release as to the intention of the Labor Party to terminate the construction works should it be elected as the government in the forthcoming election. Evidence of that nature is entirely speculative. 60 It follows that the applicant's application for an interlocutory injunction is dismissed. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.