SAVE BEELIAR WETLANDS (INC) -v- JACOB [2015] WASC 482 (16 December 2015)

2 Each of the three statements enunciates a policy to the effect that in cases in which the process of assessment leads the EPA to conclude that implementation of a proposal would result in significant residual impact to critical environmental assets after all efforts to mitigate those impacts on site have been exhausted, then:

(a) the EPA would not consider the provision of environmental offsets to be an appropriate means of rendering such a proposal environmentally acceptable; and

(b) there would be a presumption that the EPA would recommend to the Minister that the proposal not be implemented.

3 In its report to the Minister following its assessment of the Proposal, the EPA concluded that implementation of the Proposal would result in significant residual impacts to critical environmental assets after all efforts at mitigation of those impacts on site had been exhausted. However, the report to the Minister makes no reference to the policy which the EPA had asserted it would apply in the three relevant policy statements current at the time the EPA made its decision and presented its report to the Minister. In particular, no reference is made in the report to the proposition that in light of the EPA's conclusions with respect to the environmental impact of the Proposal, environmental offsets would not be an appropriate means of rendering the proposal environmentally acceptable, or to the proposition that there was a presumption that the EPA would not recommend to the Minister that the Proposal may be implemented. To the contrary, the report which the EPA provided to the Minister embodies the assumption that the Proposal would be environmentally acceptable if adequate environmental offsets were provided. Further, there is no reference to the policy enunciated in the three relevant policy statements in any minutes of the meetings of the EPA in which the Proposal was considered in the three years prior to the decision of the EPA as to the outcome of the assessment, nor in any briefing note provided to the EPA relating to the Proposal.

4 I have concluded that the EPA took no account of its own published policies at the time it made its decision and provided its report to the Minister. I have also concluded that the EPA was legally obliged to take account of the policy enunciated in its own published policy statements as a condition of the valid exercise of the jurisdiction conferred upon it by the Environmental Protection Act 1986 (WA) with respect to environmental impact assessment. That conclusion arises from the proper construction of pt IV of the Act, viewed in the context of the Act as a whole. I have therefore concluded that the environmental impact assessment undertaken by the EPA was invalid and that this ground of review must be upheld.

5 The Minister's decision to allow the Proposal to be implemented subject to conditions which he specified was made in reliance upon the recommendation and report of the EPA which I have found to be invalid. It follows that the Minister's decision is also invalid.

6 It will be for the EPA to determine, in the light of my reasons and current circumstances, the steps which must be taken to undertake and complete an assessment of the environmental impact of the Proposal which conforms to the obligations imposed upon the EPA by the Act.

7 For the reasons which follow, I have also decided that all other grounds of review should be dismissed.

8 The applicants seek judicial review of two decisions. The first is the decision of the EPA (the second respondent) made on 13 September 2013 to provide to the Minister (the first respondent) its report on the outcome of its assessment of the Proposal referred to it by the Commissioner of Main Roads Western Australia (Main Roads) (the third respondent) in which it recommended to the Minister that the Proposal may be implemented subject to the conditions specified in its report (Assessment Report).

9 The second decision under review is the decision of the Minister made on 2 July 2015 to allow the Proposal to be implemented subject to conditions.

10 There are three respondents to the application for judicial review. They are identified in the preceding paragraphs. Main Roads has taken no active part in these proceedings and has advised the court that it will abide by any decision which is made. The Attorney General of Western Australia was given leave to intervene at a time when the grounds upon which judicial review was sought included a challenge to the impartiality of the EPA, as a result of which it was thought inappropriate for either the EPA or the Minister who acted in reliance upon the EPA's advice to actively contest the claim for relief.[1] However, those grounds were subsequently abandoned, and written and oral submissions in opposition to the relief sought were presented on behalf of the Minister, the EPA and the intervenor.

11 There are two applicants. The first applicant is Save Beeliar Wetlands (Inc), an incorporated association which has, as its primary objective, the preservation and environmental protection of wetlands through which the proposed extension to the Roe Highway would be constructed. The second applicant is Ms Carole de Barre. As the Minister, the EPA and the Intervenor properly conceded that Ms de Barre's interests are directly affected by the decisions under review and that she is therefore a person who has a greater interest in the issues the subject of these proceedings than a member of the general public, it is unnecessary to specify the manner in which her interests are affected by the decisions under review. It follows from the concessions made by the respondents and the intervenor that Ms de Barre has standing to bring these proceedings. It also follows that although the respondents do not concede that Save Beeliar Wetlands (Inc) has standing to pursue the relief claimed, it is unnecessary to determine whether that applicant has standing, as nothing turns upon it.[2]

12 These proceedings were commenced more than six months after the decision of the EPA to publish the Assessment Report. As a consequence, the applicants applied for an order to the effect that the proceedings were nevertheless commenced within time, or alternatively, for an order extending the time within which proceedings could be commenced. The respondents conceded that an order should be made extending the time for commencement of that part of the proceedings which challenged the decision of the EPA, to include the date upon which the proceedings were in fact commenced. That concession was properly made, given that these proceedings were commenced within six months of the Minister's decision to allow implementation of the Proposal. In these circumstances it is unnecessary to determine whether, as the applicants contend, the proceedings challenging the decision of the EPA were commenced within time or whether, as the respondents contend, an order for an extension of the time for the commencement of that part of the proceedings was necessary.

The Environmental Protection Act 1986 (WA)

13 Each ground of review asserts that the EPA, or the Minister, as the case may be, exceeded the jurisdiction conferred by the Environmental Protection Act 1986 (WA) (the Act). It follows that the proper construction and effect of the Act is central to these proceedings and, indeed, as will be seen, determinative. In this section of my reasons I will identify the provisions in the Act which are relevant to the grounds of review.

14 The long title to the Act declares that the Act is:

[T]o provide for an Environmental Protection Authority, for the prevention, control and abatement of pollution and environmental harm, for the conservation, preservation, protection, enhancement and management of the environment and for matters incidental to or connected with the foregoing.

15 Section 4A provides that the object of the Act is to protect the environment of the State having regard to five enunciated principles. As it is not asserted that any of the specific principles has particular significance to the issues in these proceedings, it is unnecessary to enunciate them.

16 Part II of the Act creates the EPA and makes provision for its constitution and operation. Section 7(2) provides that members of the EPA are to be appointed on account of their interest in, and experience of, matters affecting the environment generally. Section 8 provides that subject to the Act, neither the EPA, nor the chairman of the EPA, shall be subject to the direction of the Minister. Other provisions within pt II specify the objectives, functions and powers of the EPA.

17 Section 15 of the Act provides:

It is the objective of the Authority to use its best endeavours -

(a) to protect the environment; and

(b) to prevent, control and abate pollution and environmental harm.

18 Section 16 of the Act provides, relevantly:

The functions of the Authority are -

(a) to conduct environmental impact assessments; and

...

(f) to prepare, and seek approval for, environmental protection policies; and

...

(j) to publish reports on environmental matters generally; and

(k) to publish for the benefit of planners, builders, engineers or other persons guidelines to assist them in undertaking their activities in such a manner as to minimise the effect on the environment of those activities or the results thereof; and

...

(m) to coordinate all such activities, whether governmental or otherwise, as are necessary to protect, restore or improve the environment in the State; and

(n) to establish and develop criteria for the assessment of the extent of environmental change, pollution and environmental harm.

19 Section 17 of the Act provides, relevantly:

(1) The Authority has all such powers as are reasonably necessary to enable it to perform its functions.

...

(3) Without limiting the generality of this section, the Authority, if it considers it appropriate or is requested to do so by the Minister, may -

...

(b) advise the Minister on any matter relating to this Act or on any proposals, schemes or questions that may be referred to it with regard to environmental matters; and

...

(d) consider and make proposals as to the policy to be followed in the State with regard to environmental matters; and

...

(g) publish reports and provide information and advice on the environment to the community at large for the purpose of increasing public awareness of the environment; and

(h) exercise such powers, additional to those referred to in paragraphs (a) to (g), as are conferred on the Authority by this Act or as are necessary or convenient for the performance of the functions imposed on the Authority by this Act.

20 Part III of the Act makes provision for the preparation and publication of environmental protection policies by the EPA, subject to the approval of the Minister. As it is not contended that any policy formulated in accordance with the provisions of this Part of the Act has any relevance to the issues in these proceedings, it is unnecessary to do any more than refer to the general scheme of the Part.

21 Part III of the Act contains provisions relating to the preparation of draft environmental protection policies by the EPA, and for the publication of notice to the effect that such a policy has been prepared. The EPA is obliged to make reasonable endeavours to consult such public authorities and persons as appear to the Authority to be likely to be affected by the draft.[3]

22 Any person may make representations to the Authority with respect to a draft policy, and the Authority is obliged to consider any representations made to it.[4]

23 Other provisions of pt III empower the Minister to appoint a committee of inquiry to hold a public inquiry into the draft policy and to report to the Minister in accordance with terms of reference determined by the Minister. Other provisions of pt III oblige the Minister to make reasonable endeavours to consult such public authorities and persons as appear to the Minister to be likely to be affected by the draft policy after which the Minister is empowered to either approve the draft policy, with or without such amendments as the Minister thinks fit, or to refuse to approve the draft policy.[5]

24 If the Minister approves a draft policy prepared by the EPA, until that approval is revoked, the policy has the force of law as though it had been enacted as part of the Act.[6]

25 Part IV of the Act makes provision for the referral of proposals that are likely, if implemented, to have a significant effect on the environment to the EPA, and for the assessment of such proposals by the EPA. When such a proposal has been referred to the EPA, the EPA must decide whether or not to assess the proposal and if the proposal is to be assessed, the level of that assessment.[7] Any person may refer a proposal to the EPA, as may the Minister.[8] A decisionmaking authority must refer to the EPA any proposal likely, if implemented, to have a significant effect on the environment.[9] A decisionmaking authority that has referred a proposal to the EPA cannot make any decision that could have the effect of causing or allowing the proposal to be implemented until the processes for which pt IV provides are complete.[10]

26 If the Authority decides to assess a proposal, any person who does anything to implement the proposal before the Minister publishes a statement to the effect that the proposal may be implemented commits an offence.[11]

27 For the purposes of assessing a proposal, the EPA may require the proponent to undertake an environmental review and report upon that review to the EPA, which may cause that report to be made available for public review for a period to be determined by the EPA.[12] The EPA may also determine the extent to which and the manner in which public authorities or persons may make submissions to the EPA in respect of that report.[13] The EPA may also require the proponent to advertise the report's availability for public review, at the proponent's expense, and to provide copies of the report free of charge or at a price to be determined by the authority, and may also require the proponent to respond to any submissions made to the EPA in respect of the report.[14]

28 With the approval of the Minister, the EPA may also conduct a public inquiry[15] which has all the powers of a Royal Commission appointed pursuant to the Royal Commissions Act 1968 (WA).[16]

29 If a proposal changes during the course of an assessment, the EPA may consent to the change if it considers the change is unlikely to significantly increase any impact that the proposal may have on the environment.[17] Otherwise the process must commence afresh.

(1) If the Authority assesses a proposal, it is to prepare a report on the outcome of its assessment of the proposal and give that report (the assessment report) to the Minister.

(2) The assessment report must set out -

(a) what the Authority considers to be the key environmental factors identified in the course of the assessment; and

(b) the Authority's recommendations as to whether or not the proposal may be implemented and, if it recommends that implementation be allowed, as to the conditions and procedures, if any, to which implementation should be subject.

(2a) The Authority may, if it thinks fit, include other information, advice and recommendations in the assessment report.

...

31 Section 44(3) obliges the Minister to cause the assessment report to be published and to cause copies of that report to be given to any other Minister likely to be interested in the proposal, each decisionmaking authority with an interest in the proposal, and to the proponent. Section 45 of the Act provides that after the Minister has caused an assessment report to be published, and undertaken processes of consultations specified by the section (including consultation with other relevant Ministers and decisionmaking authorities), the Minister is to determine whether or not the proposal to which the report relates may be implemented and if so, the conditions and procedures to which implementation is to be subject. If the Minister decides that the proposal may be implemented, the Minister is obliged to serve copies of a statement setting out his decision to that effect upon various persons specified in the section. The section also provides that if an appeal is lodged in respect of an assessment report, the proposal shall not be implemented while the appeal is pending or otherwise than in accordance with the decision made on the appeal.

32 Part VII of the Act makes provision for appeals against various decisions of the EPA. Relevantly, s 100 of the Act provides:

(1) Any decisionmaking authority, responsible authority, proponent or other person that disagrees with -

(a) a recorded decision of the Authority that a proposal is not to be assessed ...; or

(d) the content of, or any recommendation in, the report prepared under section 44 in respect of a proposal;

...

may lodge with the Minister an appeal in writing setting out the grounds of the appeal.

33 Other provisions of Pt VII specify the manner in which appeals are to be considered and, ultimately, determined by the Minister. Where an appeal is lodged pursuant to s 100 of the Act, the Appeals Convenor must request the EPA to report to the Minister on the appeal.[18] The Minister may appoint an appeals committee to consider and report on any appeal.[19] If an appeals committee is appointed, it must consult the EPA and the appellant and may consult such other persons as it considers necessary.[20] An appeals committee must report to the Minister on its findings and recommendations and the Minister must allow or dismiss the appeal.[21] The Minister may also remit the proposal to the EPA for assessment, further assessment or reassessment.[22] As the precise mechanisms for the determination of appeals are not relevant to the issues in these proceedings, it is unnecessary to refer to those provisions in any greater detail.

34 Section 122 of the Act provides that the EPA may draw up administrative procedures for the purposes of the Act and in particular for the purpose of establishing the principles and practices of environmental impact assessment, and may amend or revoke those administrative procedures from time to time.

35 The evidence took the form of a series of affidavits with extensive annexures tendered by consent, together with an aerial photograph and schematic diagram showing the location of the proposed highway. None of the deponents of the affidavits were required to give oral evidence. The facts established by the evidence and which are relevant to the grounds of review are as follows.

36 The EPA has developed an elaborate structure of published policies, guidance documents and procedural statements 'to help proponents during the environmental impact assessment (EIA) process in Western Australia'.[23] A document published by the EPA identifies the following categories of publication (as at May 2014):

• Environmental Protection Policies
• State Environmental Policies
• Environmental Impact Assessment ... Administrative Procedures (2012)
• Environmental Assessment Guidelines
• Environmental Protection Bulletins
• Strategic Advice
• Post Assessment Guidelines[24]

37 The category of Environmental Assessment Guidelines has replaced a previous category of published policy which was operative at times relevant to this case, namely Guidance Statements. All Guidance Statements are being progressively reviewed and updated as Environmental Assessment Guidelines.[25] The category 'Environmental Protection Bulletins' has replaced a previous category of published policy which was operative at times relevant to this case, namely Position Statements. All Position Statements are being progressively reviewed and updated as Environmental Protection Bulletins.[26]

38 In February 2003, the EPA published Bulletin 1088, a document entitled 'Environmental values associated with the alignment of Roe Highway (Stage 8)'.

39 The Bulletin reports that the then Minister sought the advice of the EPA in relation to the alignment for Roe Highway Stage 8 following a request from the then Minister for Planning and Infrastructure. The Bulletin is said to provide 'environmental advice on the key environmental values associated with the alignment of Roe Highway Stage 8[27] and likely impacts arising if construction was undertaken'. The Bulletin expressly states that it does not constitute a formal assessment by the EPA and that the 'purpose of the advice is to provide independent guidance on environmental issues to government at a stage when formal assessment by the EPA under Part IV of the [Act] is not possible'.

40 The Bulletin is said to be published pursuant to s 16(j) of the Act. As s 16(j) of the Act refers to the publication of 'reports on environmental matters generally', and Bulletin 1088 is concerned with the specific environmental issues associated with a specific proposal at a particular location, there is room for doubt as to the correctness of the identification of s 16(j) of the Act as the source of the power to publish the Bulletin. However, as nothing turns upon the proper identification of the source of that power and no party contends that publication of the Bulletin was beyond the powers of the EPA, it is unnecessary to consider that question any further.

41 The Bulletin sets out the then proposed alignment of Roe Highway Stage 8 and identifies relevant environmental values and likely impacts upon those values if construction was to proceed. The conclusions drawn from the processes of assessment of the Proposal in its then current form were expressed in the following terms:

This report provides advice on the key environmental values that would be impacted by construction of a highway within the alignment of Roe Highway Stage 8.

The area within and adjacent to the alignment where it bisects Beeliar Regional Park is considered to be of high conservation value and significance due to the ecological linkages it provides and the wetland, vegetation, faunal, ecological, aboriginal and social values that are represented. In addition to directly impacting on the wetland, vegetation and faunal values, the construction and operation of a highway through the area will also lead to further severance of these ecological linkages, reducing the area's viability and longterm management.

As well as the direct impacts of the construction of a road, there would also be a significant increase in traffic moving through the area. The current projections for the number of vehicles that would travel through this area as a result of construction and operation of Roe Highway Stage 8 is estimated to be approximately 40,000. This would have a significant impact on the area's wetlands, vegetation, fauna and ecological linkage. Construction and operation of a highway would also significantly impact on the fauna movement through the area due to the significant barrier it would pose as well as the potential for increased road kills. There is also the potential for spillages due to the significant increase in freight vehicles moving through the area.

Accordingly, the EPA concludes that any proposal for the construction of the alignment of Roe Highway Stage 8 through the Beeliar Regional Park would be extremely difficult to be made environmentally acceptable. It is accepted that through design and construction there is the potential to manage and minimise the potential impacts to a certain extent. However, the EPA is of the opinion that the overall impacts of construction within the alignment, or any alignment through the Beeliar Regional Park in the vicinity of North Lake and Bibra Lake, would lead to the ecological values of the area as a whole being diminished in the longterm. Every effort should be made to avoid this.

It is recommended that other alternatives to direct freight through the general area, which do not involve the clearing and filling of the wetlands within the Beeliar Regional Park, be pursued.

42 In January 2006 the EPA published a document entitled 'Environmental Offsets - Position Statement No. 9'. The Position Statement remained operative until August 2014, and therefore was in operation over the period during which the EPA assessed the Proposal, and at the time it presented the Assessment Report to the Minister.

43 The document does not itself identify any specific source of legislative power for its publication. The identification of a specific source of legislative power to publish the statement was addressed by counsel for the applicants during the course of argument, and is a matter to which I will return.

44 The glossary to the Position Statement describes environmental offsets in the following terms:

Environmental offsets are commonly referred to [as] environmentally beneficial activities undertaken to counterbalance an adverse environmental impact, aspiring to achieve 'no net environmental loss' or a 'net environmental benefit' outcome.

45 The introduction to the Position Statement refers briefly to previous attempts to develop and use environmental offsets as an environmental management tool in Western Australia. In that context it is asserted:

The [EPA] currently recognises that various offset policies and approaches are being developed and used without common overarching principles and acknowledges that there is the potential for inconsistent messages to be given. In addition, there is some concern from the community about what offsets should and shouldn't be.

The EPA is also concerned about perceptions that negotiated offset and compensation packages are being used to make otherwise 'unacceptable' adverse environmental impacts 'acceptable' within government. It is aware that some environmental offsets, proposed in the guise of sustainability tools, are sometimes over-riding the protection and conservation of our State's most valuable environmental assets. Over time, the cumulative effects of this type of decisionmaking would contribute to a gradual decline in both the quality and quantity of the State's priority environmental assets. The EPA is of the view that this approach is neither sustainable nor focused on protecting the environment. It is also aware there may be equity issues that need to be addressed by government. The challenge now is to find the means of doing so effectively.

...

In view of the aforementioned issues, the EPA is developing this Position Statement to provide overarching guidance and to establish a consistent policy approach on the matter. This position statement provides some clarification on the options for industry, developers, environmental consultants, specialist scientists and community groups who may be involved in developing or reviewing options for environmental offsets.

Where a proponent for a development is subject to the environmental impact assessment and approval process, and environmental offsets are properly part of those considerations, the EPA expects proponents to put forward commitments for offsets as part of their proposal.

46 The Position Statement contains a general discussion of various issues associated with the use of environmental offsets to mitigate environmental impact. In that section of the document, a number of important policy issues are addressed. They include the general question of whether environmental offsets do in fact mitigate or ameliorate adverse environmental impact if the offset is nothing more than the acquisition and maintenance of other land in its current environmental condition. There is a cogent argument to the effect that unless there is a real or appreciable risk of the environmental degradation of that other land, the mere act of acquisition and maintenance of that land does not mitigate or 'offset' the environmental degradation of other land in any material way. As counsel for the applicants expressly conceded that none of the grounds of review raise any issue with respect to the adequacy of the environmental offsets proposed by the EPA in relation to the Roe Highway Stage 8 Proposal, it is neither necessary nor appropriate for me to say anything more about that issue.

47 Section 2 of the Position Statement is entitled 'Purpose'. Its introductory paragraphs state:

The purpose of this Position Statement is to provide the community, government agencies, industry, developers, consultants, business and other key stakeholders with overarching advice about the intent and appropriate use of environmental offsets.

The EPA considers the purpose, scope and principles in this Position Statement to be important and these will help guide the EPA in future decisionmaking and in its advice. It must also be reinforced that the EPA's environmental offsets policy position in no way affects the legitimacy of other policy positions related to conservation and environmental protection. The EPA holds the view that environmental offsets should not be considered in isolation, but rather as part of an integrated framework for improved management of the environment that includes regulatory and behavioural incentive programs.

48 Section 3 of the Position Statement sets out a number of principles which the EPA will apply when considering environmental offsets. Because, as I have noted, the adequacy of the offsets proposed by the EPA in this case is not in issue, it is unnecessary to refer to those principles in any detail.

49 Section 4 of the Position Statement is entitled 'Scope'. It provides:

The scope of this Position Statement applies to all environmental issues, matters and advice for which the EPA has jurisdiction ...

Ecosystems and Emissions

This Position Statement is relevant to all new proposals for significant adverse impacts to ecosystems and for emissions to the environment.

The EPA on the advice of relevant government agencies will determine whether adverse residual impacts are significant or not ...

Critical assets

'Critical assets' represent the most important environmental assets in the State that must be fully protected and conserved for:

• the State to fulfil its statutory and policy requirements;
• the State to remain sustainable in the longer term; and,
• the EPA to comply with its general principles for advice and decisionmaking ....

Therefore, when the issue is before the EPA, there is a presumption against recommending approval for proposals that are likely to have significant adverse impacts to 'critical assets'. The EPA does not consider it appropriate to validate or endorse the use of environmental offsets where projects are predicted to have significant impact to the following: ...

50 There follows a list of various types of environmental asset which are, by clear implication, to be taken to be 'critical assets'. That list includes the following items relevant to the Proposal for Roe Highway Stage 8:

• regional parks;
• Bush Forever reserves;
• Declared Threatened Fauna;
• Environmental Protection Policy wetlands; and
• Conservation Category Wetlands.

51 In this section of the Position Statement, under the heading 'Government decision framework' it is asserted:

In some instances, significant adverse impacts to 'critical assets' may be approved by State Government Ministers to provide an essential community service (such as electricity, water, gas and transport infrastructure), public benefit, or to allow strategic social or economic development to occur.

Under these circumstances, the EPA's advice is that approval of any such project of this nature should be made conditional on the:

• consideration or demonstration (to the maximum extent possible) of onsite impact mitigation; and
• development and implementation of an acceptable, comprehensive offsets package for significant, residual adverse impacts.

52 Section 5 of the Position Statement is concerned with implementation. Under the heading 'When and how should environmental offsets be approved?' it is asserted:

The following are key questions about the application of environmental offsets. They are dealt with in more detail in the companion paper to this Position Statement viz. the EPA's Guidance Statement on Environmental Offsets (in preparation).

Test 1 - are these proposed new activities, extensions or enhancements to existing activity, or existing activities requiring renewal of State government environmental approvals likely to have significant environmental impacts?

Test 2 - before offsets are considered, are potential environmental impacts demonstrably addressed following the hierarchy:

- avoid

- minimise (limit magnitude)

- rectify (restore, repair)

- reduce (over time)?

Test 3 - are residual environmental impacts expected to have a significant adverse impact on critical or high value assets?

Test 4 - do residual environmental impacts remain significant but not so significant that the activity is likely to be found environmentally unacceptable (including in a cumulative impacts context)?

Test 5 - can significant residual environmental impacts be offset directly (including 'like for like or better')?

Test 6 - if such impacts cannot be fully or partially offset directly what contributing offsets could be reasonably proposed and implemented?

Test 7 - does the offsets package (direct and contributing) achieve the aspirational goal of 'net environmental benefit'? Are positive offsets ratios relevant?

Test 8 - is the offsets package robust and likely to provide a longlasting benefit?

Test 9 - have the costs of enduring management and maintenance been included?

Test 10 - is the commitment to an offsets package clearly defined, transparent, implementable, enforceable and auditable?

53 Then follows a diagrammatic depiction of the decisionmaking process when environmental offsets are involved. The diagram commences with an inverse pyramid headed 'environmental assets' in which categories of assets are described in descending order of importance - namely, 'critical assets', 'high value assets', and 'low/med value assets'.

54 In the text adjacent to the diagram describing these categories of assets, 'critical assets' are described in the following terms:

Critical Assets: represent the State's most important environmental assets that must be fully protected and conserved ... Significant adverse impacts to these assets should be avoided at all costs. Therefore, the EPA in providing its advice will adopt a presumption against approval of project proposals where significant adverse impacts affect 'critical assets'. However, where projects have been approved by the State Government (see Section 4) approval should be conditional on the:

• consideration or demonstration (to the maximum extent possible) of onsite impact mitigation; and
• development and implementation of an acceptable offsets package for significant, residual adverse impacts.

55 Consistently with the text, in the diagram depicting the decisionmaking process, an arrow connects the box containing the words 'critical assets' to a box which states 'presumption that no significant impacts acceptable unless decided by State Govt ('special circumstances')'. An arrow connects that box to an inverted pyramid entitled 'onsite impact mitigation' and another arrow connects that inverted pyramid to a box entitled 'offset package'. Viewed in the context of the text, it is clear that those arrows are only to apply to the decisionmaking process relating to critical assets if the presumption that no significant impacts are acceptable has been rebutted or it has been decided by the State Government that the project will proceed irrespective of its environmental impact.

56 Subsequent portions of this section of the Position Statement describe the differing types of environmental offsets which may, perhaps in combination, produce an acceptable package of environmental offsets.

57 When the Position Statement is read as a whole, its general tenor is clear. The policy of the EPA, enunciated in the document, is to the effect that when in the course of undertaking an environmental impact assessment the issue of environmental offsets arises for consideration, two critical issues will be addressed by the EPA. The first issue concerns the quality of the assets which will be affected by the proposal, and in particular, whether the assets fall within the category of 'critical', 'high value', or 'low/medium value'. The second critical issue concerns the character of the residual adverse environmental impact after all steps which can be taken to mitigate those impacts on site have been taken.

58 If the environmental assets affected by the proposal come within the 'critical' category, and if the impact of the proposal upon those assets will be significant after all steps at onsite mitigation have been taken, the EPA will proceed on the basis that there is a presumption against recommending approval of the proposal, and the use of environmental offsets will not be considered. However, if the State Government has already determined that the proposal will proceed then the EPA will advise government that approval of the proposal should be conditional upon mitigation of onsite impact to the maximum extent possible, and the development and implementation of an acceptable and comprehensive offsets package.

59 In September 2008 the EPA published a document entitled 'Guidance for the Assessment of Environmental Factors - Environmental Offsets - Biodiversity No. 19'. The document remained operative until August 2014 and therefore, like Position Statement No 9, was operative during the course of the EPA's assessment of the Proposal and at the time the EPA presented the Assessment Report to the Minister. Also like Position Statement No 9, the document itself does not identify any particular source of legislative power for its publication. That is an issue to which I will return.

60 The foreword to the Guidance Statement advises readers that the advice contained within the document complements and should be read in conjunction with Position Statement No 9. That advice is repeated in the text of the document under the heading 'Purpose' where it is asserted:

This Guidance Statement specifically addresses environmental offsets for proposals or schemes that impact on biodiversity. It should be read in conjunction with Position Statement No. 9 ... The main purpose of this Guidance Statement is to provide more specific advice than in the Position Statement, particularly in relation to the technical application of biodiversity offsets and the presentation of offsets packages to the EPA.

...

The scope of this Guidance Statement applies to all proposals and schemes referred to the EPA that have significant adverse impacts on biodiversity assets of 'high' or 'critical' value.

61 Under the heading 'The Issue' further reference is made to Position Statement No 9. It is asserted that:

The EPA's Position Statement No. 9 ... established a policy approach for the use of environmental offsets in the context of EIA[28] in Western Australia. This policy approach forms the basis for this Guidance Statement.

62 Under the heading 'The Guidance' the following section appears:

3.1 Determining when it is appropriate to apply offsets:

In the context of EIA,[29] several criteria need to be assessed by proponents to determine if they have significant adverse residual impacts and therefore if it is appropriate to consider offsets.

Where there are significant adverse impacts to 'critical' assets, the EPA will assess the proposal or scheme through EIA.[30] The EPA, in providing its advice to the Minister, will adopt a presumption against recommending approvals of proposals or schemes where significant adverse environmental impacts affect 'critical' assets.

63 The glossary to the document describes 'critical assets' to

represent the most important environmental assets in the State that must be fully protected and conserved for:

• the State to fulfil its statutory and policy requirements;
• the State to remain sustainable in the longer term; and
• the EPA to comply with its general principles for advice and decisionmaking.

64 As with Position Statement No 9, the Guidance Statement contains a diagrammatic representation or flowchart, setting out the process which will be followed by the EPA in undertaking an assessment of environmental impact in cases involving environmental offsets. The diagram is structured in such a way as to show that each proponent must demonstrate that 'all reasonable attempts to mitigate adverse impacts have been exhausted'. The diagram shows that the next step in the assessment process depends upon whether the environmental assets are 'critical' or alternatively 'high value'. If the assets are critical, the diagram reveals two possibilities. The first involves the case in which significant adverse residual impacts on critical assets remain after all reasonable attempts to mitigate those impacts have been exhausted. In that case, the flowchart directs that 'offset discussions are ceased due to EPA presumption against recommending approval'.

65 The second possibility depicted in the diagram relating to critical assets occurs 'when significant adverse residual impacts on critical assets remain but are not significant enough to make the proposal or scheme unacceptable'. A note to the diagram states that the determination of 'significance' is 'a judgement of the EPA'. If the case comes within this category, the flowchart reveals that the next step is for proponents to consider offsets and discussion of potential offsets may take place with the EPA. However, '[p]roponents should not assume that offsets will be accepted at this stage as the EPA will assess their adequacy on a casebycase basis and in the context of the entire proposal'.

66 So, Guidance Statement No 19, which is limited to the use of offsets in connection with biodiversity, is generally consistent with Position Statement No 9, except that it contemplates a category of case in which the residual impacts on critical assets after all attempts to mitigate those impacts have been exhausted are significant, but 'not significant enough to make the proposal or scheme unacceptable'. In such a case, environmental offsets may be considered and discussed with the EPA, but it should not be assumed that they will be accepted. It may be that this category of case corresponds with the category of case implicit in Position Statement No 9, being that category of case in which the presumption against approval is rebutted, notwithstanding the conclusion that the Proposal will have a significant residual impact upon critical environmental assets, although nothing turns upon the question of whether there is in fact any significant difference between Position Statement No 9 and Guidance Statement No 19 in this respect.

67 Also in September 2008 the EPA published a document entitled 'Environmental Protection Bulletin No. 1 - Environmental Offsets - Biodiversity'. As with the two documents published by the EPA which I have considered immediately above, this document remained operative until August 2014, and was therefore operative during the process of environmental assessment of the Proposal, and at the time of presentation of the Assessment Report to the Minister.

68 Like the other two documents to which I have referred immediately above, the document itself does not identify any specific legislative authority for its publication. Again, that is a matter to which I will return.

69 Under the heading 'What are environmental offsets?' it is asserted that:

Environmental offsets are a package of activities undertaken to counter adverse environmental impacts arising from a development. Offsets are the 'last line of defence' and are considered after all steps have been taken to minimise impacts resulting from a development. Offsets aim to ensure that any adverse impacts from development are counterbalanced by an environmental gain somewhere else.

The [EPA] believes environmental offsets should be used with a goal of achieving a net environmental benefit. This recognises that the environment has been significantly compromised in the past and that halting and reversing the decline of the environment is now a priority.

70 Under the heading 'When should offsets be considered?' it is asserted that:

Offsets should only be considered after all efforts to avoid and minimise environmental impacts have been made and significant environmental impacts still remain.

Major development proposals or schemes that have significant environmental impacts, particularly on 'critical' and 'high' value assets, will usually trigger the EPA's environmental impact assessment process. 'Critical' assets are the most important environmental assets in the State and are listed in EPA Position Statement No 9 ...

The EPA advises the Minister for the Environment on whether a project should be approved or not. In providing its advice to the Minister, the EPA adopts a presumption against recommending approval of proposed projects where significant adverse environmental impacts affect 'critical' assets. The EPA determines on a casebycase basis how significant an impact is and this in turn influences the decision to assess the project through the environmental impact assessment process and its recommendations to the Minister including advice on the adequacy of proposed offsets.

71 On 20 April 2009 an officer of Main Roads wrote to the Chairman of the EPA enclosing a formal referral of the Proposal to construct Roe Highway Stage 8.

72 On 13 May 2009 the EPA determined that it would assess the Proposal, and that the level of assessment would be that of a Public Environmental Review (PER), with a review period of six weeks. A PER is the most detailed and intensive level of assessment utilised by the EPA and, as its description implies, involves the provision of an opportunity for public review and for submissions to be provided to the EPA by the public.

73 Between May and October 2009 12 appeals were lodged against the EPA's decision to assess the Proposal of the level of a PER with a review period of six weeks. On 2 November 2009 the Minister upheld those appeals in that the period for public comment was extended from six to 12 weeks.[31]

74 On 29 April 2010 representatives of Main Roads gave a presentation on the Proposal for the Roe Highway Stage 8 extension to a meeting of the EPA. The minutes of that meeting record that the key environmental issues identified for the Proposal were wetlands, flora, native vegetation and fauna, and acid sulphate soils. The minutes also record that:

The EPA stated that the area is a critical asset and as such environmental offsets may not be appropriate where there are likely to be significant residual adverse impacts.

75 I digress to observe that this record of discussion appears to reflect the policy enunciated in Position Statement No 9, and the other published policy documents to which I have referred. I also observe that this appears to be the only occasion upon which any reference to that policy appears in the minutes of meetings of the EPA at which the Proposal was considered.

76 During June 2010 the EPA approved an environmental scoping document provided by Main Roads as providing an acceptable basis for the preparation of the PER. A year later, in June 2011, the EPA approved the PER prepared by Main Roads for public release. During the period of public review which followed publication of the PER, 3283[32] submissions were provided to the EPA by members of the public. Between July 2012 and May 2013 Main Roads responded to those submissions.

77 The Proposal was considered by the EPA at a meeting held on 20 June 2013. The minutes of that meeting record that:

The OEPA[33] has yet to finalise the detailed analysis of the factors to determine whether the Proposal can meet the EPA's objectives with offsets.

78 The minutes of the meeting do not record any reference to a presumption that offsets would not be considered and that the EPA would recommend refusal of the Proposal if, after all options for the mitigation of environmental impact had been exhausted, there would be a significant residual impact upon critical assets.

79 The Proposal was again considered by the EPA at a meeting held on 18 July 2013. A briefing note prepared by the office of the EPA for the consideration of members at that meeting recommended that the EPA adopt the assessment strategy outlined in that note and agree that 'the proposal to extend Roe Highway from Kwinana Freeway to Stock Road can be managed to meet the EPA's objectives' subject to the implementation of environmental conditions specified in the note, and further recommended that the EPA agree that the Chairman of the EPA finalise and release the Assessment Report pursuant to s 44 of the Act.

80 The briefing note includes an assessment of the key environmental factors said to arise from the Proposal and includes detailed consideration of environmental offsets which would 'counterbalance any significant residual environmental impacts'.[34]

81 The briefing note contains no reference to Position Statement No 9, or to Guidance Statement No 19, or to Environmental Protection Bulletin No 1. Nor does the briefing note contain any reference to a presumption against recommending approval of the Proposal if it would result in significant residual environmental impacts upon critical environmental assets. Rather, as I have noted, the briefing note proposes, without discussion or consideration of any of those previously published documents, that offsets be adopted to 'counterbalance any significant residual environmental impacts'.

82 The minutes of the meeting of the EPA held on 18 July 2013 record that members discussed the Proposal before being joined by representatives of Main Roads. After those representatives joined the meeting, the minutes record discussion of offsets in the following terms:

With the Perth - Peel strategic assessment probably having locked up the potential offset land, the proponent has limited offset options and is currently considering a combination of rehabilitating degraded land (to be identified), as well as putting into reserve the undeveloped portion of the Road Reserve. Considerations include the Commonwealth's requirements for restoration to be in the habitat range of the fauna that is to be protected (black cockatoo), and for vegetation to be in as good if not better condition than the vegetation being lost.

Although the offsets package is still to be determined, the Government is keen to reach a decision on the environmental acceptability of the proposal prior to reviewing costing and making a decision on implementation, funding and timing. The time between decision and implementation would provide for more consideration to be given to an offsets strategy.

...

The EPA agreed to proceed with the assessment on the basis that the details of the offsets package remain to be finalised and that the EPA/OEPA would explore with the proponent the opportunities to achieve a net environmental benefit.

83 The minutes of that meeting also record that the members of the EPA accepted the recommendations made in the briefing note and in particular agreed to adopt the assessment strategy outlined in that briefing note and further agreed to recommend that the Proposal could be implemented subject to the conditions specified in the briefing note and authorised the Chairman of the EPA to finalise and release the Assessment Report.

84 On 13 September 2013 the EPA presented to the Minister its report of the assessment of the Proposal, and its recommendations as to whether or not the Proposal may be implemented.

85 The summary at the commencement of the Assessment Report identifies the key environmental factors found by the EPA. They are:

86 In a section of the Assessment Report entitled 'Background and Context' reference is made to Bulletin 1088 published in February 2003. In that context, the Report notes that

[T]hrough [the] proponent's extensive consultation and planning and design work it has avoided and minimised impacts on wetlands, native vegetation and native fauna

87 The summary goes on to record that notwithstanding those measures the Proposal will have a number of residual environmental impacts being:

• the clearing of 97.8 ha of native vegetation including 5.4 ha of Beeliar Regional Park and 7 ha of Bush Forever Site 244;
• loss of 78 ha of foraging habitat and 2.5 ha of potential nesting habitat for the Carnaby's Black Cockatoo and Forest Redtailed Black Cockatoo;
• clearing of 6.8 ha of wetlands including wetlands protected under the Environmental Protection (Swan Coastal Plain Lakes) Policy 1992 and Conservation Category Wetlands; and
• fragmentation of wetlands and fauna habitat.

88 I digress to observe that many of these residual impacts involve impacts upon 'critical assets' within the meaning of Position Statement No 9, although no reference is made to that fact in the Summary. To the contrary, after listing those residual impacts, the Summary proceeds:

The EPA considers the above residual impacts to be significant and they would therefore need to be counterbalanced through the provision of environmental offsets.

89 I digress further to observe that this process of reasoning appears to be directly contrary to the policy enunciated in Position Statement No 9 and reiterated in Guidance Statement No 19 and Environmental Bulletin No 1, the tenor of which is to provide that environmental offsets will not be 'appropriate' if the Proposal will result in significant residual environmental impact upon critical assets. Nor is there any reference in the summary or anywhere else in the Assessment Report to any presumption against recommending approval of a proposal which would result in significant environmental impact upon critical environmental assets.

90 The summary goes on to refer to the package of environmental offset measures proposed by the proponent, and the components of the package which would be required by the EPA in the conditions which it recommends be applied to any approval of the Proposal.

The EPA has therefore concluded that the proposal would meet the EPA's objectives for the key environmental factors assessed and as such it recommends the proposal be approved subject to the recommended environmental conditions summarised below.[35]

92 As foreshadowed in the summary, the text of the Assessment Report deals with each key environmental factor identified by the EPA in its assessment of the Proposal. Dealing firstly with the factor of inland waters environmental quality, the Assessment Report records the EPA's conclusion that the residual impacts of the Proposal during construction and operation can be managed to meet the EPA's objectives, provided certain conditions are imposed. The Report records the same general conclusion in relation to the second key environmental factor assessed - namely, hydrological processes.

93 In respect of the third key environmental factor addressed - namely, flora and vegetation, the Assessment Report records the EPA's conclusion that:

[D]espite the best efforts by the proponent to minimise impacts, there is still the unavoidable loss of 6.8 ha of wetlands comprising 5.8 ha of CCWs[36] and 1 ha of EPP[37] wetlands. This is considered to be a significant residual impact of the proposal and hence would require an environmental offset. This is discussed in Section 5.6 of the report.[38]

94 In the same section the Assessment Report records the EPA's conclusion that:

[D]espite the best efforts by the proponent to minimise impacts on Beeliar Regional Park and Bush Forever site 244, there will be a loss of 5.4 ha and 7 ha respectively. This is considered to be a significant residual impact of the proposal and hence would require an environmental offset. This is discussed in Section 5.6 of the report.[39]

95 Later in the same section of the Assessment Report, after considering various mitigation proposals suggested by the proponent, the EPA records its conclusion that:

[T]here still remains a significant residual impact to the EPA's key environmental factor of flora and vegetation, and hence an environmental offset is necessary in order to counterbalance the impacts from this proposal.

The proponent has put forward an environmental offsets package to address the proposal's significant residual impacts. The quantum of the offset proposals, objectives and their adequacy is set out in Section 5.6 of this report.[40]

96 I digress to observe that, as with the summary, no reference is made in this section of the Assessment Report, or indeed anywhere in the Assessment Report to policies enunciated in Position Statement No 9, Guidance Statement No 19 and Environmental Bulletin No 1. The process of reasoning enunciated in the Assessment Report appears directly contrary to the policies enunciated in those documents in that the Assessment Report accepts, without enunciating any process of reasoning, that environmental offsets can be used to address significant residual impacts to critical assets.

97 The same observation applies to a conclusion expressed later in the next section of the Assessment Report under the heading 'Terrestrial fauna', in the following terms:

Having taken all reasonable and practical measures to avoid and mitigate the potential impacts, there still remains a significant residual impact to the EPA's key environmental factor of terrestrial fauna through habitat fragmentation and loss of Black Cockatoo foraging habitat, and hence an environmental offset is necessary.

The proponent has put forward an environmental offsets package to address the proposal's significant residual impacts. The quantum of the offset proposals, objectives and their adequacy is set out in Section 5.6 of this report.

98 In section 5.6 of the Assessment Report, under the heading 'Offsets' it is asserted that:

The EPA's environmental objective for this factor is to counterbalance any significant residual environmental impacts or uncertainty through the application of offsets.

After all avoidance and minimisation actions have occurred, the following significant residual impacts remain:

• Clearing of:
  • 97.8 ha of remanent native vegetation;
  • 78 ha of foraging habitat for Carnaby's Cockatoo;
  • 73 ha of foraging habitat for Redtailed Black Cockatoo;
  • 2.5 ha of potential Black Cockatoo nesting habitat;
  • 5.4 ha of Beeliar Regional Park;
  • 7 ha of Bush Forever site 244.
• Impacts to:
  • 6.8 ha of wetlands, including CCWs.
• Fragmentation of:
  • fauna habitat;
  • assemblages for priority fauna;
  • Swan Coastal Plain significant bird species habitat;
  • migratory birds and significant wetland bird species habitat.

CCWs,[41] threatened fauna, priority fauna and conservation areas are all critical assets in accordance with Position Statement 9 Environmental Offsets. Impacts to critical assets should be avoided and minimised as far as possible. The residual impacts are considered to be significant due to the importance of these assets. (emphasis in original)

99 I digress to observe that this portion of the Assessment Report records the EPA's conclusion that after exhausting all actions which can be taken to mitigate environmental impact, the residual impacts to critical assets are significant. Although specific reference is made to Position Statement No 9,[42] the Assessment Report makes no reference to the policy enunciated in that Statement to the effect that in such circumstances environmental offsets are not 'appropriate' and there is a presumption against recommending approval of the Proposal.

100 The following passage appears later in the section of the Assessment Report dealing with offsets:

During the assessment process, the proponent had identified a parcel of land that would satisfy these requirements. The proponent had undertaken measures to assess the environmental values of this land. However, in mid2013, due to circumstances beyond its control, this land is likely no longer able to be used as an offset for this proposal. As such, the EPA has recommended conditions 122 to 125 that will allow the proponent to find an alternative offset site to acquire, which must contain a number of environmental values. Prior to construction, the proponent will be required to prepare and submit a Land Acquisition Management Plan for the approval of the CEO of the OEPA. This will ensure that any land proposed for acquisition and management is considered appropriate to be used as an offset for the impacts of this proposal. The recommended conditions also lock in key requirements of this offset including:

• land acquired must contain at least 234 ha of Carnaby's Cockatoo and 219 ha of Redtailed Black Cockatoo foraging habitat;
• individual land parcels acquired must be a minimum of 100 ha in size;
• land acquired must contain at least 7.5 ha of Carnaby's Cockatoo and Redtailed Black Cockatoo potential breeding habitat; and
• a requirement for the proponent to detail arrangements and funding for management on advice from DPaW.[43]

101 Later in the same section the Assessment Report records:

The EPA has recommended conditions 122 to 125 which requires the proponent to:

• prepare, submit and implement a Land Acquisition Management Plan prior to construction;
• identify the land to be acquired and its values which include at least 7 ha of CCW areas and an appropriate buffer.

102 The Assessment Report concludes with its recommendations, which include a recommendation that the Proposal may be implemented subject to the conditions and procedures recommended in an Appendix to the Assessment Report. Those conditions are complex and lengthy. For the purposes of these proceedings it is only necessary to refer to the conditions which relate to the environmental offsets proposed. Those conditions are found in item 12 of the relevant Appendix, and relevantly provide:

12-1 In view of the significant residual impacts to the environment, including impacts to threatened species, priority flora, fauna habitat, migratory birds, native vegetation, wetlands, Beeliar Regional Park and Bush Forever sites, as a result of implementation of the proposal, the proponent shall undertake the following requirements relating to offsets as outlined in conditions 12-2 to 12-16.

Land Acquisition and Management Plan

12-2 Prior to commencement of construction, or as otherwise agreed by the CEO, the proponent shall submit a Land Acquisition and Management Plan to the requirements of the CEO.

12-3 The proponent shall implement the Land Acquisition and Management Plan, prior to commencement, or as otherwise agreed by the CEO, until the CEO advises implementation may cease.

12-4 The Land Acquisition and Management Plan shall:

(1) identify at least 234 hectares of land to be acquired;

(2) demonstrate that individual land parcels to be acquired are at least 100 hectares in area;

(3) identify the environmental attributes of the land to be acquired which must contain:

(a) at least 234 hectares of ... Carnaby's Cockatoo and ... Redtailed Black Cockatoo potential foraging habitat;

(b) at least 7.5 hectares of ... Carnaby's Cockatoo and ... Redtailed Black Cockatoo potential breeding habitat;

(c) at least 7 hectares of Conservation Category Wetland areas and an appropriate buffer;

12-5 Prior to commencement of construction, or as otherwise agreed by the CEO, the proponent shall acquire, or fully fund the acquisition of, the land identified in the approved Land Acquisition and Management Plan for the purpose of conservation.

103 Following publication of the Assessment Report, 165 appeals against that report were lodged by various people, including each of the applicants in these proceedings. Following a report by the Appeals Convenor, on 23 December 2014 the Minister determined those appeals by amending some of the conditions recommended by the EPA.

104 On 2 July 2015 the Minister published his determination to allow the Proposal to be implemented subject to conditions specified in that determination.

105 There are four grounds of review. Three of the grounds of review are directed to the decision of the EPA with respect to the publication of the Assessment Report. The fourth ground of review is directed to the Minister's decision that the Proposal may be implemented. That ground of review is entirely parasitic, in the sense that it depends entirely upon the proposition that the Minister's decision is invalid because he relied upon the EPA's Assessment Report, which was invalid for one or more of the reasons enunciated in the grounds of review challenging that report. The Minister accepts, appropriately, that his decision is invalid if the assessment report was invalid.[44] It follows that the fourth ground of review will succeed, and the Minister's decision must be held to be invalid, if one or other of the grounds of challenge to the EPA's Assessment Report is successful in establishing that the Assessment Report was invalid.

106 Although there are three numbered grounds of review in relation to the EPA's Assessment Report, those grounds give rise to five distinct albeit related grounds. Those grounds can be paraphrased in the proposition that the EPA exceeded the jurisdiction conferred upon it by the Act when it issued the Assessment Report because:

(a) the EPA failed to ask itself whether an offsets package was capable of rendering the Proposal environmentally acceptable before addressing the adequacy of the offsets package which should be provided by the proponent;

(b) the EPA failed to take into account a relevant consideration which it was obliged to take into account, being the policy enunciated in Position Statement No 9, Guidance Statement No 19, and Environmental Protection Bulletin No 1;

(c) in the alternative to the preceding ground, the EPA failed to provide adequate reasons for its decision that an offsets package would render the Proposal environmentally acceptable;

(d) the EPA assessed the impact which the Proposal would have upon key environmental factors separately and in isolation when it was required to assess those factors cumulatively and in combination; and

(e) having determined that environmental offsets were necessary to counterbalance the impact which implementation of the Proposal would have on the environment, the EPA recommended that the Minister impose a condition which would empower the Chief Executive Officer of the Office of the EPA to permit construction of the Proposal to commence notwithstanding that the proponent had failed to identify the environmental offsets which would be provided.

I will address each of those grounds in the order set out above.

107 It is a singular feature of the Assessment Report that it contains no reference to the possibility that the Proposal may not be recommended for implementation. Rather, the approach taken in the Assessment Report generally is evident from the summary provided at its commencement. In that summary, reference is made to the conclusions expressed by the EPA in Bulletin 1088 in 2003. The summary then identifies the various steps taken by the proponent (Main Roads) since 2003 in order to mitigate the environmental impact of the Proposal. Next, the summary identifies the residual environmental impacts of the Proposal if all mitigatory steps proposed by the proponent are taken (being residual impacts upon environmental assets described in the EPA's published policy statements as 'critical' assets, as acknowledged later in the report). Then it is observed:

The EPA considers the above residual impacts to be significant and they would therefore need to be counterbalanced through the provision of environmental offsets.[45]

108 Then follows a description of the package of environmental offset measures required by the EPA which are said to 'satisfactorily counterbalance the significant residual impacts'.[46]

109 The applicants submit that it is a condition of the valid exercise of the jurisdiction to undertake an assessment of environmental impact that the EPA must address, separately and discretely, the question of whether the Proposal is environmentally unacceptable irrespective of any conditions which might be attached to its implementation before addressing the question of the adequacy of any environmental offsets which are said to make the Proposal environmentally acceptable. In the course of oral argument it was submitted that this jurisdictional requirement applied only to the consideration of environmental offsets, and not to other conditions which might be imposed upon the implementation of a proposal.[47] This jurisdictional requirement is said to arise from the nature of offsets.[48] It was submitted that the nature of offsets imposes this jurisdictional requirement because 'any proposal can be made acceptable'[49] by the provision of sufficient environmental offsets, and the Act contemplates that there must be some proposals which are environmentally unacceptable because s 44(2) contemplates that the EPA may recommend that a proposal not be implemented.

110 In their written submissions the applicants develop the argument in support of this ground in the following way. The first step in the argument is the proposition that before recommending that a proposal may be implemented, the EPA must form a concluded view that the proposal is environmentally acceptable. That proposition is said to flow from the Act's long title, the object of the Act enunciated in s 4A, the objects of the EPA enunciated in s 15 of the Act, the provisions of s 7(2) and s 8 of the Act which require the EPA to have expertise in environmental matters and to function independently of the Minister, and the power conferred by s 44(2) of the Act to recommend that a proposal not be implemented.[50]

111 This first step in the argument is, with respect, hardly controversial. However, it should be noted that the proposition that the EPA must conclude that a proposal is environmentally acceptable before recommending its implementation is quite different to the proposition which underpins this ground of review, which asserts that the EPA must first address the question of environmental acceptability before giving any consideration to the question of whether environmental offsets could render a proposal environmentally acceptable.

112 The second step in the applicants' argument involves the assertion that before forming a view as to whether a proposal is environmentally acceptable, it is necessary for the EPA to assess the impact that the proposal is likely to have on the environment if implemented. Again, this proposition is hardly controversial, and such an assessment was undertaken by the EPA in this case.

113 Next, the applicants submit that the process of assessment requires the EPA to identify, understand and evaluate the characteristics of those elements of the environment upon which a proposal will impact if implemented. Again, this proposition is not controversial and accurately describes the process of assessment undertaken by the EPA in this case.

114 Next, the applicants submit that having regard to the terms of s 44(2) of the Act, following the process of assessment of environmental impact, there are only three possible outcomes contemplated by the Act, namely:

(a) the Proposal is acceptable without the need for any conditions and procedures to be attached to its implementation;

(b) the Proposal is environmentally acceptable provided that certain conditions and procedures are attached to its implementation; or

(c) the Proposal is environmentally unacceptable, irrespective of whatever conditions and procedures are attached to its implementation.

115 Again, this proposition is, with respect, hardly controversial. It is the logical consequence of the conferral of a power to recommend for or against implementation of a proposal with or without conditions and procedures attached. However, as with the first step in the applicants' argument, it does not follow from the identification of these possible outcomes of the process of assessment that the issue of environmental acceptability must be considered separately and discretely from the issue of whether there are conditions and procedures which, if imposed, would render a proposal environmentally acceptable. To the contrary, it follows from the conferral of the express power to recommend that a proposal may be implemented subject to conditions and procedures that there will be a class of proposals which would not be environmentally acceptable unless certain conditions and procedures are attached to their implementation. If a proposal comes within that class, issues relating to the conditions and procedures which can or should be attached to the implementation of the proposal are inextricably linked to, and form an integral part of, the assessment of the fundamental question of whether the Proposal is environmentally acceptable.

116 It follows that even though the various steps in the applicants' argument propounded in their written submissions may be accepted, they do not either singly or in combination support the proposition which underpins this ground of review, which would require the EPA to separately and discretely address the question of environmental acceptability independently of any assessment of the conditions and procedures which might be attached to implementation of a proposal. That proposition is fundamentally inconsistent with the powers conferred upon the EPA by s 44 of the Act, which includes the power to recommend implementation of a proposal subject to specified conditions and procedures.

117 As I have noted, during the course of oral argument, counsel for the applicants submitted that the condition upon the exercise of jurisdiction which underpins this ground of review is peculiar to conditions relating to the provision of environmental offsets, and arises from the characteristic that all proposals might be made acceptable if sufficient environmental offsets are provided.

118 There are at least two reasons why this submission must be rejected. First, the extent of the jurisdiction conferred upon the EPA and the conditions to which the exercise of that jurisdiction is subject are fundamentally questions of statutory construction. There is nothing in any of the provisions of the Act to which the applicants refer in support of this ground of review capable of supporting the proposition that the consideration of environmental offsets imposes a particular condition upon the exercise of the EPA's jurisdiction. To the contrary, as I have already observed, the express conferral of a power to recommend that a proposal may be implemented subject to specified conditions and procedures necessarily connotes that there will be a class of proposals in respect of which the issue of environmental acceptability is inextricably tied up with issues with respect to the conditions and procedures which can and should be attached to implementation of the proposal.

119 Second, the proposition that all proposals could be rendered environmentally acceptable by the provision of environmental offsets is not supported by any expert evidence or by logical analysis. Take, for example, a proposal which if implemented would result in environmental pollution - say, by the discharge of substances into a body of water. Whether or not such a proposal is environmentally acceptable will obviously depend upon the nature and quantity of the substances being discharged. If those substances are toxic and the quantities involved are substantial, it is difficult to see, as a matter of logic, how any environmental offset could render such a proposal environmentally acceptable. However, such a proposal could be made environmentally acceptable by the impositions of conditions and procedures which would eliminate the risk that toxic substances would be discharged into the body of water by, for example, requiring those substances to be removed from site and disposed of in a manner which does not involve pollution of the environment.

120 On the other hand, there will be some forms of pollution which might be rendered environmentally acceptable by the provision of environmental offsets. An obvious example is a proposal which would result in the emission of carbon into the atmosphere. Such a proposal might be rendered environmentally acceptable by the imposition of a condition which requires the proponent to sequester from the atmosphere a greater amount of carbon than will be discharged if the proposal is implemented by, for example, planting trees.

121 These examples illustrate a class of case in which issues with respect to the conditions and procedures which can or should be attached to implementation of a proposal, including conditions with respect to the provision of environmental offsets, are inextricably tied up with, and cannot be divorced from, the question of whether the proposal ought be implemented subject to specified conditions and procedures.

122 The proposition which underpins the first ground of review is inconsistent with the express provisions of the Act and must be rejected. It follows that this ground of review must be dismissed.

Failure to take account of published policies as a mandatory relevant consideration

123 The applicants assert that it is a condition of the valid exercise of the jurisdiction conferred upon the EPA by the Act that the EPA take into account any policies which it has promulgated and which relate to the exercise of those powers. The applicants further assert that in this case the EPA failed to take into account the policy enunciated in Position Statement No 9, Guidance Statement No 19, and Environmental Protection Bulletin No 1, notwithstanding the findings which it made in the course of its assessment of the Proposal, and which enlivened that policy.

124 When a decision-maker has formulated a policy to guide the exercise of statutory powers, it is important to distinguish between three quite separate legal questions which might arise when the exercise of that statutory power is subject to judicial review.

125 First, a question might arise as to whether the decisionmaker exceeded the jurisdiction conferred by the statute by taking the policy into account. That question will arise in a circumstance in which it is contended that the policy places a fetter or constraint upon the exercise of a discretion conferred by the statute, or perhaps because the policy would require the decisionmaker to take account of matters that are irrelevant to the exercise of the statutory power. There is no question of this kind in this case.

126 Second, a question may arise as to whether the decisionmaker is bound to take account of the policy which he or she has promulgated as a condition of the valid exercise of the jurisdiction conferred by the statute. That question is often expressed in terms of whether the policy is a mandatory relevant consideration, in the sense that the decisionmaker would exceed the jurisdiction conferred upon him or her if he or she failed to take the policy into account. That is the question which arises in this case.

127 Third, a question may arise as to whether the decisionmaker is bound not only to take the policy into account, but to apply that policy in the sense that he or she cannot lawfully depart from the policy or decide that the policy should not be applied to the particular case under consideration. A question of this kind would have arisen if the policy enunciated in Position Statement No 9, Guidance Statement No 19, and Environmental Protection Bulletin No 1 had been a policy approved by the Minister pursuant to the provisions of pt III of the Act and had thereby acquired the force of law as if enacted as part of the Act. However, because the relevant policy in this case is not of that character, no question of this kind arises.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd

128 The decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[51] is generally accepted to provide the classic statement of legal principle relating to judicial review on the ground of failure to take account of a relevant consideration. His Honour observed:

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s. 5(2)(b) of the A.D.(J.R.) Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: (Sean Investments Pty Ltd v MacKellar; CREEDNZ Inc v Governor-General; Ashby v Minister of Immigration. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation that a decision-maker must take into account those matters which he 'ought to have regard to' should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion 'must call his own attention to the matters which he is bound to consider'.

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subjectmatter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subjectmatter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury and Water Conservation and Irrigation Commission (NSW) v Browning. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subjectmatter, scope and purpose of the Act.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, for example, the various expressions in Baldwin & Francis Ltd v Patents Appeal Tribunal; Hanks v Minister of Housing and Local Government; R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: R v Bishop of London; R v Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd. (foonotes omitted)

129 The Act does not expressly state that the EPA must consider policies which it has formulated and published prior to exercising powers under the Act to which those policies relate. Accordingly, the question is whether such an obligation can be derived by implication from the subject matter, scope and purpose of the Act.

Drake v Minister for Immigration & Ethnic Affairs (No 1)

130 The legal principles applicable to a policy formulated by a decisionmaker to guide the exercise of a general statutory discretion were considered by the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs.[52] That was a case in which the first category of question to which I referred above arose in the course of an appeal from the Administrative Appeals Tribunal in which it was asserted that the Tribunal had abdicated its statutory responsibility to arrive at the correct or preferable decision in all the circumstances of the case because the Tribunal had considered itself bound to apply a policy formulated by the decisionmaker whose decision was under review. Bowen CJ and Deane J observed:[53]

In some cases, the Tribunal may be expressly required by the Act conferring the right of appeal to regard itself as bound by the principles formulated by the Minister in administering some aspect of the Act: see, for example, Dairy Industry Stabilization Act 1977 ss 11A and 24A. But that is not the case here. There was not, in the present matter, any express statutory provision either requiring or authorizing the Tribunal to determine the matter in accordance with relevant government or ministerial policy.

In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.

It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case.

131 As I have noted, the question addressed in Drake (No 1) was the question of the extent to which the Tribunal could take into account the policy formulated by the decisionmaker whose decision was under review, not whether the Tribunal or the decisionmaker was bound to take that policy into account. Accordingly, the question addressed in Drake (No 1) is not the question which must be addressed in this case.

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[54]

132 Following the success of the appeal in Drake (No 1), the case was remitted to the Tribunal for rehearing. In the course of his reasons for decision following that rehearing, Brennan J[55] made a number of observations with respect to the formulation of policies by decisionmakers generally, and the approach which the Tribunal would generally take to such policies in its review of decisions to which a policy applied. His Honour observed:[56]

Sections 12 and 13 of the Migration Act require the Minister to determine whether or not to deport an immigrant or alien whose criminal conviction exposes him to that jeopardy. The Minister is free to exercise that power without adopting a policy as to the standards and values to which he will have regard in deciding particular cases. He is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, provided the policy is consistent with the statute. In Stringer v Minister of Housing and Local Government, Cooke J (at 1298) held the effect of the relevant authorities to be:

... that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision.

There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.

Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth [1976] HCA 20; (1976) 136 CLR 1; Drake's case at 589, and the cases there cited). Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be: see, eg, Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149). The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.

That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power.

...

Subject to these limits the Minister may arrive at his decisions by reference to a policy of his own devising.

133 Brennan J went on to refer to the various beneficial aspects of the formulation of an administrative policy, including consistency in decisionmaking. In that context he observed:[57]

Not only is it lawful for the Minister to form a guiding policy; its promulgation is desirable.

134 Brennan J went on to consider the approach which the Tribunal should take to a policy formulated by the Minister. In that context he observed:[58]

It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal's duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.

In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so. Of course, the Tribunal would be in error to apply an unlawful ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision. ...

If the Tribunal applies ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to the Tribunal. One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in comparable cases, and one of the most useful aids in achieving consistency is a guiding policy.

...

If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review.

These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice.

135 Again, in Drake (No 2) no question arose as to whether the policy formulated by the Minister was a mandatory relevant consideration in the sense that it was a matter which either the Minister or the Tribunal was obliged to take into account as a condition of the valid exercise of the statutory powers conferred upon them. Although the practice of the Tribunal enunciated by Brennan J would necessarily result in the Tribunal taking into account any policy applying to a decision under review, at least for the purpose of deciding whether that policy should be applied to the case before the Tribunal, the views of Brennan J are cast in terms of desirable practice, rather than in terms of a condition upon the valid exercise of the Tribunal's power of review.[59]

136 The question which must be addressed in this case - that is, the extent to which a decisionmaker must take into account policies which he or she has formulated as a condition of the valid exercise of the power to which those policies relate has been addressed in three decisions of the Federal Court of Australia at first instance.

Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce

137 In Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce,[60] the effect of a scheme formulated and promulgated by the Minister for Industry, Technology and Commerce pursuant to s 266 of the Customs Act 1901 (Cth) to assist the Comptroller of Customs in the exercise of a discretion conferred upon him by s 273 of the Customs Act arose for consideration. Davies J rejected the submission that the scheme promulgated by the Minister bound the Comptroller in the exercise of his discretionary powers. However, he considered that the Comptroller was bound to take account of the scheme in the exercise of his discretion. He observed:[61]

Even if non-statutory rules do not, of themselves, have binding effect, the failure of a decisionmaker to have regard to them or his failure to interpret them correctly may amount to an error of law justifying an order of judicial review.

In J.A. Pye (Oxford) Estates Ltd v West Oxfordshire District Council and the Secretary of State for the Environment (supra, at 579), Widdicombe QC, a Deputy Judge, said:

... the Secretary of State must take his decision in the light of the relevant considerations in existence at the time of the decision, and if a relevant new circular came into existence before the decision it was a material factor of which account must be taken ... the circular was a material factor, it was left out of account and the decision therefore had to be quashed.

In R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, Windeyer J expressed the point even more forcefully. At 206, his Honour said:

The Director-General is the officer whose written permission must be produced to the Customs. But in my opinion that does not mean that he is to grant or refuse permission according to some view of his own, giving weight or no weight as he chooses to the policy of the Crown.

As to misinterpretation of rules, Lord Denning MR said in R v Chief Immigration Officer, Gatwick Airport, Ex parte Kharrazi [1980] 1 WLR 1396 at 1403:

... if the immigration officer interprets the rules wrongly - and on that account asks himself the wrong question - and thus gives the wrong answer to those dependent on it - he does something which he is not empowered to do. He acts ultra vires.

See also R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864.

However, the evidence does not show that the Registrar failed to have regard to a material fact, namely the terms of cl E14. In the absence of evidence to the contrary, I assume that he was aware of the terms of the scheme including the terms of cl E14. There is no evidence that he failed to consider it. Nor is there any evidence that the Registrar misinterpreted his authority. He was a Collector of Customs and he had the administration of the Scheme.

Nikac v Minister for Immigration and Ethnic Affairs

138 In Nikac v Minister for Immigration and Ethnic Affairs,[62] Wilcox J cited with approval the observations made by Davies J in Gerah Imports.[63] Further, he applied the proposition to the case before him. He observed:[64]

Counsel for Mr Sorensen argue that the failure of the Minister to have regard to this policy vitiated the Minister's decision. I think that this submission is correct. Although a non-statutory policy is not binding upon a decision-maker, in the sense that he or she may decide in the particular case not to act in accordance with that policy, a policy applicable to the case is always a relevant consideration in the making of a decision. Unless it can be said that the policy is so insignificant that it could not have materially affected the decision - see per Mason J in Minister for Aboriginal Affairs v Peko- Wallsend Ltd (supra) at 40 - any failure to take that policy into account will lead to invalidity. It cannot be said, in Mr Sorensen's case, that the failure to take into account the transition policy could not have materially affected the Minister's decision. It was a policy directly applicable to the case under consideration and designed to shield affected persons from what had been seen as the unfairness of being retrospectively affected by the amending legislation. It seems to me likely that any Minister with a sense of fairness, confronted with this policy and considering its rationale, would have been extremely reluctant to deport Mr Sorensen for offences committed by him before the amendments took effect.

BHP Direct Reduced Iron Pty Ltd v CEO, Australian Customs Service

139 The views expressed by Wilcox J in Nikac were expressly adopted by Carr J in BHP Direct Reduced Iron Pty Ltd v CEO, Australian Customs Service,[65] Carr J observed:[66]

I reject the respondent's submission that the existence of a policy cannot give rise to factors which a decision-maker is bound to take into account in the sense that a failure to do so will constitute a failure to take a relevant consideration into account. I think that it can readily be implied into s 273 that if the executive arm of government formulated a policy for the making of determinations under that section, then the respondent was bound to take into account such factors as that policy indicated were material to such a decision. I do not think that it can be said that such a conclusion flows from what was decided in Drake, in particular at ALR 590 in the report of that case. In that case, the full court held that the initial decision-maker was entitled to take into account government policy. If he had done so then, on review, the existence of that policy would plainly be a relevant factor for the Administrative Appeals Tribunal to take into account. However, I respectfully agree with the conclusion reached by Wilcox J in Nikac at ALD 625 that although a non-statutory policy is not binding upon a decision-maker, it is always a relevant consideration in the making of a decision.

Minister for Immigration, Local Government and Ethnic Affairs v Gray

140 In Minister for Immigration, Local Government and Ethnic Affairs v Gray,[67] a majority of the Full Court of the Federal Court concluded that the Administrative Appeals Tribunal was bound to take into account policies formulated by the decisionmaker whose decision is under review, but left open the question of whether such a decisionmaker was bound to take such policies into account. French and Drummond JJ observed:[68]

It is right to say that the Tribunal, which operates as part of a continuum of administrative decision-making, is not bound by governmental policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review:

If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.' - Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420.

The place of government policy in the Tribunal's decision making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy: Drake (supra) at 421. This is nothing more than a statement of what is sometimes called the non-fettering principle which applies generally to statutory tribunals and decision-makers - see P Bayne, The Exercise of Discretion According to Policy Guidelines (1993) 67 ALJ 214.

The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application. As Bowen CJ and Deane J observed in Drake (at 420):

... the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power.

This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decision are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits. But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case. There is a question which need not be resolved at this time, namely whether a primary decision-maker who also has a policy making function is free to disregard his or her own announced policy. A distinction between failure by a Minister to have regard to or properly interpret Ministerial policy on the one hand and a like failure by a delegate on the other, was drawn by Wilcox J in Nikac v Minister for Immigration and Ethnic Affairs [1988] FCA 400; (1988) 20 FCR 65 at 78:

In a situation where the Minister is free deliberately to depart from his own policy, it is difficult to see that a decision by the Minister could be rendered invalid because, in making it, he misinterpreted the policy and thus accidently departed from it.

It is not necessary now to pass upon his Honour's observation. It should be remembered however, that departure from an announced policy may not be open unless procedural fairness requirements have been observed - Century Metals & Mining NL v Yeomans [1989] FCA 273; (1989) 40 FCR 564. For present purposes it is sufficient to consider the position of the Tribunal. The Tribunal provides independent merit review, it is not a policy maker. The notion that the Tribunal may be bound to take into account applicable Ministerial policy as a relevant factor is fundamental to the approach enunciated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, the decision on the rehearing which followed the judgment of the Full Court in Drake v Minister for Immigration and Ethnic Affairs.

141 For reasons which I will develop, their Honours' reference to a presumed legislative acceptance of the likelihood that policies or guidelines will be developed by the executive to govern the application of a wide statutory power is germane to the issues which arise in this case.

142 More recently, Robertson J considered these issues in Minister for Foreign Affairs v Lee.[69] Like Gray, the case was primarily concerned with an alleged misconstruction of a relevant policy which was said to result in a failure to take that policy into account. However, as the case turned on another issue, it was unnecessary for Robertson J to reach a concluded view on the issues relating to the application of policy. It follows that his observations on that subject were obiter. Nevertheless, his Honour's review of the previous line of Federal Court cases to which I have referred is helpful. He observed:[70]

In Gray there were two or possibly three categories explained at 208. The first category was where the existence and content of such a policy was to be regarded as a relevant fact which the Tribunal is bound to consider. Justices French and Drummond said that a serious misconstruction of the policy's terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. The second category was where a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else. Justices French and Drummond said there may then be reviewable error. The third possible category was where 'in a limiting case' a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose.

The present case, on the parties' submissions, was within category one. However, it does not appear to me that the majority in Gray intended to depart from what had been said in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (Drake) at 420, another criminal deportation case. There Bowen CJ and Deane J distinguished between a case where the Tribunal may be expressly required to regard itself as bound by the principles formulated by the Minister and the case before that Court which was where it was permissible for the decision-maker to take relevant government policy into account in making his decision but where the Tribunal was not under a statutory duty to regard itself as being bound by that policy. It may be correct to say, as the Minister submitted, that the first two categories referred to in Gray overlap. However, my preferred analysis is that the first category is where the decision-maker is bound to have regard to the existence and content of the policy, because it amounts to a mandatory relevant consideration, while the second category is where the decision-maker is not bound to apply a policy but purports to apply it as a proper basis for disposing of the case in hand. In any event, there was no Ministerial policy in the present case and it may be that, despite the agreement of the parties, the present case is in the second category, being a case where the Tribunal was not bound to have regard to the departmental policy but chose and purported to do so. In such a case, as I understand Gray, the misconstruction or misunderstanding of the policy must be more radical than for the first category. A further complication is that there appears to have been a number of decisions of the Court which seem to elide the use of 'relevant' in its ordinary sense of permissible to be taken into account, as in Drake, and 'relevant' in its technical sense of a mandatory consideration. These decisions include Nikac v Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 400; (1988) 20 FCR 65 at 81; BHP Direct Reduced Iron Pty Ltd v Chief Executive Officer, Australian Customs Service (1998) 55 ALD 665 at 682; and Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1 at 15. On that approach, which appears to be that a valid but non-statutory policy is not binding upon a decision-maker but is always a mandatory relevant consideration in the making of a decision, it is not clear what the content is of the second category in Gray. Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at [58] also suggests there may be no relevant distinction for this purpose between a Ministerial policy and a departmental policy.

As I have said, it is not necessary in the present case to attempt to resolve these complexities. (emphasis in original)

143 As I have noted, in Gray, the majority drew attention to the connection between departure from an announced policy and the requirements of procedural fairness, referring to Century Metals and Mining NL v Yeomans.[71] In that case the relevant Minister had given public assurances that an independent, impartial and thorough assessment of the competing proposals for the reopening of mining operations on Christmas Island would be carried out before any decisions was taken. There was no statutory obligation to undertake such an assessment. The applicant applied for judicial review on the ground of denial of procedural fairness, asserting that no assessment of the kind promised by the Minister had taken place. In that context, the court[72] held:[73]

Having regard to the type of interests involved and the repeated deliberate and unequivocal nature of the Minister's assurances, we are of the opinion that it may properly be said that those assurances gave rise to a legitimate expectation that they would be honoured, that no decision would be made in favour of mining unless and until there had been an independent, impartial and thorough assessment of all available proposals. This is a case in which, although there was no statutory requirement that the liquidator or the Minister proceed by way of an independent, impartial and thorough inquiry, the doctrine of procedural fairness entitles the appellant to hold the Minister to his promise that this procedure would be followed.

144 In Century Metals the court relied on the decision of the Privy Council in AttorneyGeneral (Hong Kong) v Ng Yuen Shiu[74] in which it was held that a published policy gave rise to a legitimate expectation that a hearing would be provided before an illegal entrant was removed from Hong Kong. There is also Australian authority at the highest level for the proposition that a published policy may give rise to a legitimate expectation.[75]

145 It is to be noted that these decisions were made at a time when notions of legitimate expectation played a greater role in Australian administrative law than is currently the case.[76] It is now established that legitimate expectations can, at best, only give rise to procedural rights, as compared to substantive rights.[77] Further, in this case the applicants do not seek judicial review on the ground of denial of procedural fairness.

146 Nevertheless, the connection between a departure from announced policy and the observance of the requirements of procedural fairness remains relevant to this case. That is because the critical question which arises in respect of this ground of review is whether, on the proper construction of the Act, the EPA is obliged to take account of its published policies as a condition of the exercise of its jurisdiction to undertake an environmental impact assessment. As I will explain, the legislative presumption that the EPA will undertake such assessments in accordance with the requirements of procedural fairness, made evident in specific provisions of the Act to which I will refer, informs the assessment of whether an implication to the effect that the EPA must take into account its announced policies when undertaking environmental assessments can be derived from the subject matter, scope and purpose of the Act.

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission

147 In Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission,[78] an issue with respect to government policy arose in the context of an appeal from a decision of the Town Planning Appeal Tribunal disallowing an appeal from a decision of the Western Australian Planning Commission refusing an application for the subdivision of land. In that context, Barker J observed:[79]

In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will [be] why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach.

Much has been written about the use of policy in administrative decision-making. Administrators do not act unlawfully in adopting policies to structure their discretionary powers. Indeed, courts have accepted that it is desirable that they should do so: British Oxygen Co Ltd v Minister of Technology [1970] UKHL 4; [1971] AC 610; R v Eastleigh Borough Council; ex parte Betts [1983] UKHL 9; [1983] 2 AC 613; Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742. However, an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case, as the decision in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 illustrates. This principle aside, the importance of the use of 'policies' in the exercise of discretionary planning powers in Western Australia is well recognised: see, eg, Hebe Pty Ltd v Metropolitan Region Planning Authority (1981) 2 APAD 428.

A relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Full Federal Court held that the Administrative Appeals Tribunal is entitled to treat Commonwealth government policy as a relevant factor in making its decision, but is not entitled to abdicate its function of independently considering and assessing the propriety of the policy. In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply the policy. He noted, however, that departures from government policy would be 'cautious and sparing', occurring only where there were 'cogent reasons': 644 - 5.

148 With respect to Barker J, neither Drake (No 1) nor Drake (No 2) establish that an 'administrator is, effectively, bound to take into account' a relevant policy. As the majority pointed out in Gray, the Drake cases were concerned only with the role of policies developed by decisionmakers in the context of review by an independent administrative tribunal. However, as I have noted, there is a line of decisions at first instance in the Federal Court of Australia which support the proposition enunciated by Barker J.

Tah Land Pty Ltd v Western Australian Planning Commission

149 In Tah Land Pty Ltd v Western Australian Planning Commission,[80] Simmonds J cited with approval the portion of the reasons of Barker J in Clive Elliott Jennings which I have set out above.

150 In this case the critical question of law which underpins[81] this ground of review is the question of whether the EPA was bound to take into account a policy which it had formulated and published in relation to the exercise of its jurisdiction to conduct environmental impact assessments. There is a line of decisions at first instance in the Federal Court of Australia, and two decisions at first instance in this court, in which it has been held that a policy formulated by an administrative decisionmaker is a mandatory relevant consideration in the sense that the decisionmaker is required to take that policy into account as a condition of the valid exercise of his or her jurisdiction.[82] However, neither my research nor counsel for the parties have been able to identify any decision at the level of an intermediate Court of Appeal or higher which supports that general proposition.

151 For my own part, notwithstanding the line of first instance decisions to which I have referred, and with the greatest of respect to the judges in those cases, I hold a considerable reservation as to whether there is a general legal principle of universal application to the effect that a decisionmaker is bound to take account of any relevant policy which he or she has formulated as a condition of the valid exercise of jurisdiction. For reasons which I will now develop, in this case it is unnecessary for me to determine whether there is such a principle. That is because this case can be resolved by reference to what I would respectfully describe as the more orthodox approach enunciated by Mason J in PekoWallsend, which involves ascertaining whether an obligation to take a particular matter into account in the exercise of jurisdiction conferred by a statute can be derived by implication from the subject matter, scope and purpose of the Act. That is the question which I will now address.

152 This case is concerned with the jurisdiction of the EPA to undertake an environmental impact assessment pursuant to the provisions of pt IV of the Act. Accordingly, in the reasons which follow, the focus of my attention is upon the provisions of pt IV, construed in the context of the Act as a whole. It should be noted that conclusions drawn with respect to the obligations which attach to the performance of the EPA's function of environmental impact assessment may not necessarily extend to all functions performed by the EPA under the Act. Whether or not the EPA is obliged to take its published policies into account in the performance of other functions under the Act will depend upon the proper construction of the statutory provisions conferring the relevant jurisdiction upon the EPA.

153 The subject matter of the Act as a whole can be derived from its long title, exemplified in the various provisions of the Act. Generally speaking, the subject of the Act is to make provision for the creation of the EPA charged with the responsibility of preventing, controlling and abating pollution and environmental harm, and for the conservation, preservation, protection, enhancement and management of the environment. The purpose of the Act is expressly enunciated in s 4A. It is to protect the environment of the State, having regard to the five principles enunciated in that section. The scope of the Act includes various provisions obviously directed at the achievement of that purpose.

154 Turning more specifically to pt IV of the Act, its subject matter is the assessment of proposals likely, if implemented, to have a significant effect on the environment. Its scope extends to any and every proposal which has that characteristic. Its evident purpose is to enable such proposals to be assessed by the EPA (if the EPA considers such an assessment to be appropriate), after which the EPA must make recommendations to the Minister and the Minister must determine whether or not an assessed proposal can be implemented, and if so, the conditions and procedures to which implementation should be subject. It is apparent from the Act as a whole that pt IV, and the process of environmental impact assessment for which it provides, is a central and significant component of the various strategies and procedures in the Act aimed at protecting and enhancing the environment, thereby achieving the general purpose of the Act.

155 The following features of the legislative scheme embodied in pt IV of the Act are relevant to the question now under consideration - that is, whether an obligation to take into account any policies published by the EPA relevant to an environmental assessment is to be implied from the statutory provisions.

156 Part IV of the Act requires the EPA to decide whether a proposal will be assessed, and if so, the level of assessment, and further requires the EPA to undertake the process of assessment and report upon its outcome. The EPA is to consist of members appointed on account of their interest in, and experience of, matters affecting the environment.[83]

157 When discharging the responsibilities imposed upon it by pt IV of the Act, the EPA is not generally subject to direction by the Minister.[84] Part IV does contain a specific power for the Minister to direct the EPA, after consultation, to assess a proposal, or to reassess a proposal more fully or more publicly.[85] The Minister may also direct the EPA to prepare an assessment report and provide it to the Minister before a specified date.[86] The Minister must also approve the conduct of a public enquiry.[87] However, in all other respects the EPA is to act independently of the Minister in performing its functions under pt IV of the Act.

3. Referral of significant proposals to the EPA

158 Any person, including the Minister, may refer a significant proposal to the EPA, and any decisionmaking authority receiving notice of a significant proposal must refer that proposal to the EPA.

159 Under pt IV of the Act, it is the EPA which decides whether a proposal referred to it is to be assessed, and if so, the level of assessment.

160 Section 100 of the Act provides that any person may appeal against a decision of the EPA not to assess a proposal referred to it.

6. Decisionmakers must await the outcome of the assessment process

161 If a proposal has been referred to the EPA, a decisionmaking authority cannot make any decision in relation to that proposal until the processes for which provision is made in pt IV of the Act are complete.

7. Implementation deferred until process complete

162 If the EPA decides to assess a proposal, it is an offence to do anything to implement a proposal until the processes for which provision is made in pt IV of the Act are complete.

8. A proponent may be required to undertake an environmental review

163 As I have noted, pt IV of the Act provides that the EPA may require a proponent to undertake an environmental review as a component of the process of environmental impact assessment.

9. Express provision is made for public review

164 Part IV of the Act expressly provides for the EPA to determine that the process for the assessment of the environmental impact of a proposal may include public review, and contains provisions to facilitate that process.

10. Part IV of the Act does not specify administrative procedures, assessment criteria or policies

165 As I have noted in the preceding paragraphs, pt IV of the Act expressly contemplates that a proponent may be required to undertake an environmental review and that members of the public may be invited to provide submissions in relation to that review. However, pt IV does not specify the administrative procedures, assessment criteria or policies which a proponent would need to know in order to undertake an effective environmental review, and which interested parties or members of the public would need to know in order to provide meaningful submissions for the consideration of the EPA. Nor are those administrative procedures, assessment criteria or policies to be found elsewhere in the Act. The five principles specified in s 4A of the Act as the means by which the purpose of the Act is to be achieved are enunciated at a level of generality. It is to be inferred that significantly greater specificity would be required if the process of interactive engagement between a proponent, decisionmaking authorities, interested parties, members of the public and the EPA for which provision is made in pt IV of the Act is to be undertaken effectively.

11. The Act expressly empowers the EPA to promulgate administrative procedures, assessment criteria and policies

166 As I have noted, various provisions of the Act[88] expressly empower the EPA to promulgate administrative procedures 'for the purpose of establishing the principles and practices of environmental impact assessment',[89] assessment criteria,[90] and environmental protection policies.[91] So, unlike Gray, this is not a case in which it is necessary to attribute to the legislature a presumed intention that a decisionmaker would develop policies to guide the exercise of decisionmaking powers conferred by the legislation. Rather, this is a case in which the intention of the legislature to that effect can be seen in the express provisions of the Act.

167 As I have noted, pt III of the Act makes provision for the development of policies which have the force of law, as if enacted in the Act, if the procedures specified in that Part are followed. As the policies upon which the applicants rely in this case have not been promulgated pursuant to pt III of the Act, they do not have the force of law. However, it cannot be concluded that the legislature intended the EPA should only take into account policies which have the force of a law as a consequence of having been approved by the Minister pursuant to pt III of the Act. That is because other provisions in the Act[92] expressly provide for the formulation and promulgation of administrative procedures, assessment criteria, principles relating to environmental impact assessment and policies other than in accordance with pt III.

168 As I have noted, pt IV of the Act expressly contemplates that the EPA may decide that the process of assessment shall include the opportunity for public review, and expressly provides mechanisms for:

(a) publication of an environmental review conducted by a proponent;

(b) the provision of submissions to the EPA in respect of the proponent's environmental review by any person, including decisionmaking authorities, parties with a direct interest in the proposal, and the public generally; and

(c) a response to those submissions by the proponent,

as part of the process of assessment. Accordingly, this is not a case in which it is necessary to attribute to the legislature a presumed intention that the process of assessment would conform to the principles of procedural fairness. Rather, this is a case in which the intention of the legislature to that effect is evident from the express provisions of pt IV of the Act.

13. Changes to proposals during assessment can only be permitted in limited circumstances

169 As I have noted, if a proponent desires to change a proposal while it is being assessed, the EPA can only consent to that change if it considers that the change is unlikely to significantly increase any impact that the proposal may have on the environment. It follows that if the proposed change is not of that character, the process of assessment of the revised proposal must start afresh.

170 As I have noted, after undertaking an assessment the EPA is obliged to provide a report on the outcome of its assessment to the Minister. Section 44 of the Act expressly requires that the assessment report must include at least the following:

(a) the key environmental factors identified by the EPA in the course of its assessment;

(b) the EPA's recommendation as to whether or not the proposal may be implemented; and

(c) if the EPA recommends that implementation be allowed, the conditions and procedures to which implementation should be subject.

171 Further, s 44 expressly provides that the EPA may, if it thinks fit, include other information, advice and recommendations in the assessment report.

172 The process of assessment required by pt IV of the Act, and the specific components of the assessment report which the EPA must provide to the Minister, are, of their very nature, inherently likely to require the development of, at least, the following:

(a) procedures for the assessment of the environmental impact of different types of proposal;

(b) criteria for the assessment of differing levels of environmental impact;

(c) policies with respect to the nature and quality of environmental impact which will be either acceptable or unacceptable, having regard to the extent of the impact of the proposal, and the character and quality of the environmental asset or assets which will be affected by the proposal;

(d) policies and principles relating to the conditions and procedures to which implementation of particular types of proposals should be subject; and

(e) administrative procedures establishing the principles and practices of environmental impact assessment.[93]

173 As I have noted, after receiving the assessment report from the EPA, the Minister is obliged to cause the report to be published.

174 As I have noted, after the Minister has caused an assessment report received from the EPA to be published, he must consult with other relevant Ministers and decisionmaking authorities before making a decision as to whether the proposal may be implemented. That process of consultation is very likely to be facilitated and enhanced by the development of appropriate policies with respect to environmental impact assessment.

17. There is a right of appeal from an assessment report

175 As I have noted, after the Minister has published an assessment report received by the EPA, any person has a right to appeal from the content of such a report, or in respect of any recommendation contained within the report. The observations which I have already made with respect to the utility of the promulgation of the development of appropriate administrative procedures, assessment criteria and policies relating to the preparation of an environmental review by a proponent and, in the case of a public review, the preparation and consideration of submissions relating to the environmental review apply with equal force to the appellate process for which provision is made by pt VII of the Act.

18. The Minister may receive reports with respect to appeals from the Appeals Convenor, Appeals Committee and EPA

176 As I have noted, pt VII of the Act expressly provides that, in cases in which an appeal or appeals are lodged against an assessment report, the Minister may receive a report with respect to those appeals from either the Appeals Convenor or an Appeals Committee (if one is formed) and from the EPA. The observations I have already made with respect to the utility of the development and promulgation of administrative procedures, assessment criteria and policies at earlier stages in the process of assessment apply with equal force to the penultimate stage of that process, which involves the provision of reports to the Minister with respect to any appeals.

177 The following general conclusions can and should be drawn from the specific characteristics I have just addressed.

178 First, the process of environmental impact assessment for which provision is made in pt IV of the Act is to be undertaken by an independent expert body by reference to administrative procedures, assessment criteria and policies which are not specified in the Act.

179 Second, the EPA is specifically empowered by various provisions of the Act to develop and promulgate administrative procedures, assessment criteria and policies including, but not limited to, those policies which acquire the force of law if promulgated in accordance with the provisions of pt III of the Act.

180 Third, in those cases in which the EPA decides that the assessment should include public review, the express provisions of the Act require a transparent process of active engagement and interaction between the proponent, decisionmaking authorities, parties with a direct interest in the proposal, members of the public and the EPA. That process of active engagement would be facilitated by development of administrative procedures, assessment criteria and policies pursuant to the exercise of the specific powers conferred upon the EPA by the Act.

181 Fourth, at least in the case of a process of assessment which includes public review, the express provisions of the Act reveal a clear legislative intention that the procedures shall conform to the requirements of procedural fairness.

182 Fifth, the Act confers a general right of appeal upon any person in respect of the content or recommendations included within a report prepared by the EPA following an environmental impact assessment. The administrative procedures, assessment criteria and policies which the EPA is expressly authorised to promulgate would also greatly facilitate the appeals process.

183 Each of these characteristics derives from the express provisions of the Act. The question which underpins this ground of review then becomes whether, having regard to these characteristics of the process of environmental impact assessment, there is an implication to be derived from the subject matter and the scope and purpose of the Act to the effect that the EPA is bound to take account of policies which it has developed to facilitate the performance of its functions with respect to environmental impact assessment. In my view the answer to that question must be in the affirmative.

184 This conclusion appears to me to flow from the general structure of the Act, under which the development of administrative procedures, criteria and policies is the responsibility of the EPA, from the characteristics of the environmental impact assessment process to which I have referred, and from the consequences which would flow if the EPA was free to promulgate and publish policies relating to environmental impact assessment and then ignore them.

185 When the EPA exercises the powers expressly conferred by the Act to publish administrative procedures, assessment criteria and policies relating to the process of environmental impact assessment it is likely that:

(a) people and decisionmaking authorities deciding whether a proposal should be referred to the EPA under pt IV of the Act will rely upon the published policies of the EPA in assessing whether the proposal is likely, if implemented, to have a significant effect on the environment;

(b) people considering whether or not to appeal from the decision of the EPA not to assess a proposal which has been referred to it are likely to rely upon the published policies of the EPA in deciding whether or not to lodge such an appeal, and if an appeal is lodged, to develop their grounds of appeal and submissions in support of their grounds of appeal in reliance upon those published policies;

(c) a proponent preparing an environmental review is likely to rely upon the published policies of the EPA in preparing that review, and to specifically address each relevant policy in that review;

(d) in the case of an assessment including a public review, people considering whether or not to lodge a submission to the EPA are likely to rely upon the published policies of the EPA in making that decision, and if a submission is lodged, in preparing that submission;

(e) a proponent responding to submissions lodged in response to an environmental review which the proponent had prepared and published is likely to rely upon the published policies of the EPA in preparing and presenting that response;

(f) people considering whether or not to lodge an appeal against the content or recommendations of the EPA in an assessment report presented to the Minister are likely to rely upon the published policies of the EPA in making such a decision, and in the event that an appeal is lodged, are likely to rely upon those published policies in formulating their grounds of appeal and in developing the arguments in support of those grounds; and

(g) in the event that appeals are lodged against an assessment report presented to the Minister by the EPA, it is likely that those responsible for reporting to the Minister with respect to those appeals will, in the interests of consistency and good governance, rely upon and address the published policies of the EPA in preparing and presenting that report to the Minister.

186 Given these likely consequences of the promulgation and publication of policies relating to the process of environmental impact assessment by the EPA, if the EPA were not obliged to take those policies into account:

(a) the various persons likely to rely upon those published policies at the various points in the process of assessment which I have just identified are all likely to be misled;

(b) the various steps in the process of environmental impact assessment for which provision is made in pt IV of the Act, including the referral of significant proposals to the EPA, appeals from decisions with respect to the assessment of referred proposals, the preparation of environmental reviews by proponents, the lodgment of submissions with respect to an environmental review prepared by a proponent, a proponent's responses to those submissions, and the process of appeal from an assessment report are all likely to miscarry;

(c) the requirements of procedural fairness are unlikely to be met because many of those engaged in the process will be proceeding on the basis of a false premise; and

(d) all the advantages of the development of policies to which reference is made in the Drake cases and in Gray would be lost and there would be a very real risk of differential treatment, inconsistency and idiosyncrasy.

187 These likely consequences would so seriously undermine the legislative objectives evident in the provisions of pt IV of the Act, and in those provisions of the Act which specifically authorise the EPA to prepare and publish administrative procedures, assessment criteria and policies relating to environmental impact assessment, that the legislature can be taken to have presumed that the EPA is bound to take account of its own published policies when exercising the jurisdiction to undertake an environmental impact assessment conferred upon it by the Act.

188 For these reasons I have concluded that the subject matter, scope and purpose of the Act compel the conclusion that the EPA was bound to take into account the three published statements of policy to which the applicants refer as a condition of the valid exercise of the jurisdiction to undertake an assessment of the Proposal. The next question which must be addressed is whether the EPA did in fact take account of the policies enunciated in those published statements.

Did the EPA take into account Position Statement No 9, Guidance Statement No 19 and Environmental Bulletin No 1?

189 As I have noted in another case,[94] there is contention within the previously decided cases with respect to the nature of the burden which must be discharged by an applicant for judicial review on the ground of failure to take account of a mandatory relevant consideration. On one view, it is sufficient if the applicant establishes that the decisionmaker failed to give proper, genuine and realistic consideration to the matter which had to be taken into account.[95] On another view, the applicant must establish that the decisionmaker has not considered the matter at all.[96] This is another case in which it is unnecessary to resolve that issue because counsel for the respondents ultimately conceded,[97] quite properly, that the correct inference to be drawn from the evidence is that the EPA failed to take any account of the policy enunciated in the three published policy statements upon which the applicants relies.

190 In light of the concession made by counsel for the respondents, a relatively brief reference to the reasons why that concession was properly made will suffice. First, as I have noted, it is significant that, on the evidence, there is only one reference to the policy enunciated in the three policy documents, to the effect that environmental offsets may not be appropriate when there are likely to be significant residual adverse impacts to critical environmental assets, in all of the minutes of the meetings of the EPA in which the Proposal was considered, and there is no reference to that policy in the briefing notes presented to the EPA with respect to the Proposal and which are in evidence. The single reference to the policy is found in the minutes of a meeting which took place in April 2010, several months before the EPA received the final version of the environmental scoping document prepared by Main Roads, more than a year before the Public Environmental Review was released for public review and more than three years before the EPA considered and resolved upon the outcome of its assessment. Put another way, there is no reference to the policy enunciated in the policy statements upon which the applicants rely in any document in evidence relating to the EPA's assessment of the Proposal for a period of more than three years prior to the EPA resolving upon the outcome of its assessment. Further, only two of the five members of the EPA present at the meeting on 29 April 2010 were present at the meeting on 18 July 2013 when the EPA resolved to recommend that the Proposal may be implemented.

191 Second, as I have already observed, the Assessment Report is fundamentally inconsistent with, and indeed contrary to, the policy enunciated in each of Position Statement No 9, Guidance Statement No 19 and Environmental Bulletin No 1. That policy has, as its essential feature, the proposition that if, after all efforts at on site mitigation have been exhausted, the residual environmental impacts of a proposal upon critical assets will be significant, then:

(a) the provision of environmental offsets will not be an appropriate means of rendering the Proposal acceptable; and

(b) there will be a presumption that the EPA will recommend against implementation of the Proposal.

192 In the Assessment Report, the EPA evaluates the residual impact of the Proposal after all efforts at onsite mitigation of its environmental impact have been exhausted and concludes that those residual impacts upon critical assets will be significant. In those circumstances, according to the policy, environmental offsets would not be an appropriate means of rendering the Proposal acceptable, and there is a presumption that the EPA would recommend against its acceptance. However, the Assessment Report makes no reference to any presumption against a recommendation that the Proposal be implemented but instead proceeds on the implicit assumption that the Proposal can be rendered acceptable to the EPA if adequate environmental offsets are provided. No attempt is made in the Assessment Report to reconcile the approach taken with the policy enunciated in the three published policy statements to which I have referred. The contrast between the two approaches is so stark as to strongly support an inference that the policy enunciated in those published statements was not taken into account by the EPA in its assessment of the Proposal.

193 As I have noted, there are portions of Guidance Statement No 19 and Environmental Protection Bulletin No 1 (but not Position Statement No 9) which suggest that there may be a category of case in which the EPA concludes that although the residual environmental impact of a proposal on critical assets is significant, the EPA might assess those impacts as not being so significant as to preclude the use of environmental offsets as a means of rendering the proposal environmentally acceptable. However, there is no evidence that the EPA considered this aspect of the previously published policies, nor is there any reference to this aspect of the policy in any briefing note provided to the EPA in respect of the Proposal, nor is there any reference to this aspect of the policy in the Assessment Report. Nor does the Assessment Report contain any assessment of the degree of the significance of the residual environmental impact of the Proposal which would, of course, be necessary if the EPA were to consider applying this aspect of the policy. For all these reasons, and given that the respondents do not submit that I should conclude the EPA was applying this aspect of the policy, the existence of this aspect of the policy does not support a conclusion that the EPA took the general policy it had enunciated in the three published policy statements into account.

194 The approach taken by the EPA in the Assessment Report is consistent with that aspect of the policy enunciated in Position Statement No 9 which declares that a different approach will be taken where a project has 'been approved by the State Government', in which case the EPA's attention will be directed to the maximisation of onsite impact mitigation and the development and implementation of an acceptable environmental offsets package. However, there is no evidence that the Proposal fell within this category, or was considered by the EPA as falling within this category, nor do the respondents contend that the Proposal fell within this category or was considered by the EPA to fall within this category. If there had been any evidence or any contention to this effect, it would have been necessary to consider the lawfulness of this aspect of the policy as there is, on its face, a strong argument to the effect that this aspect of the policy is unlawful, as I pointed out to counsel for the applicants in the course of oral argument. That is because s 8 of the Act expressly provides that the EPA is not subject to the direction of the Minister in the performance of its functions, except to the extent expressly provided in the Act. It follows that in the performance of its function of undertaking environmental impact assessment, the EPA is only subject to direction by the Minister, or requires the approval of the Minister, in the limited specific circumstances expressed in that Part, and which I have identified above. It is a clear inference from the Act as a whole that, except in those limited respects, in undertaking its responsibilities with respect to environmental impact assessment, the EPA is to act independently of executive government. Further and in any event, the expressed views of the government or any Minister of the government with respect to the social utility or desirability of any project or proposal are, on the face of it, irrelevant to the function which the EPA is required to perform under pt IV of the Act, which is focused upon the assessment of the environmental impact of the proposal under consideration and the identification of appropriate conditions and procedures to which its implementation should be subject. Under the structure evident in pt IV of the Act, issues of social utility and desirability are apt for consideration by the Minister when considering the recommendations of the EPA in the light of the process of consultation which the Minister is required to undertake before deciding whether or not the proposal may be implemented, and if so, the conditions and procedures to which its implementation should be subject.

195 Despite the apparent cogency of the arguments in favour of the conclusion that this aspect of the policy enunciated by the EPA is unlawful, in the circumstances of this case it is unnecessary to resolve that question as no party submits that this aspect of the previously published policy was applicable or was in fact applied by the EPA when considering the Proposal.

196 Third, as the EPA concluded that the residual environmental impacts of implementation of the Proposal on critical assets after all efforts at onsite mitigation had been exhausted would be significant, the policy would have had a profound and quite probably determinative effect upon the assessment of the Proposal if it had been applied. In those circumstances, the failure to make any reference whatever to the policy in the Assessment Report, or at any meeting of the EPA within the three years preceding its decision as to the outcome of the assessment, or in any briefing note provided to the EPA, strongly supports the inference that the policy enunciated in the three published statements upon which the applicants rely was not taken into account.

197 Fourth, although the applicants carry the burden of proving that the EPA failed to take into account a consideration which it was required to take into account in order to succeed on this ground, in the circumstances of this case, the inference that the EPA did not take the policy into account is considerably reinforced by the failure of the EPA to adduce any evidence of any document produced in the course of the assessment of the Proposal in which reference is made to the policy, other than the minutes of the meeting of the EPA on 29 April 2010, and by the failure of the EPA to lead evidence from any officer or member of the EPA to the effect that the policy was taken into account.

198 Finally on this issue it is appropriate to refer briefly to the written and oral submissions on this topic advanced on behalf of the respondents before the issue was conceded by counsel. In those submissions it was contended that, because reference can be found to the subject matter of the 10 Tests posed in section 5 of Position Statement No 9[98] it can be inferred that the EPA was taking the policy into account in its assessment.

199 There are a number of answers to this contention. The first is that any overlap between the topics addressed in the Assessment Report and the subject matter of the 10 Tests enunciated in Position Statement No 9 appears to be coincidental rather than deliberate. Although there is a brief reference to Position Statement No 9 in the Assessment Report, there is no reference to the Tests enunciated in section 5 of that Statement nor is there any attempt to enunciate or answer the Tests posed in that section.

200 Further, the submission misconceives the intellectual process contemplated by the Tests considered in the context of the policy enunciated in Position Statement No 9. So, if Test 3, 'are residual environmental impacts expected to have a significant adverse impact on critical ... assets?', is answered in the affirmative, as it was in this case, the text of the Position Statement makes clear that environmental offsets will not be considered to be an appropriate means of rendering the Proposal acceptable, and there will be a presumption that the EPA will recommend against implementation. It follows that, in such a circumstance, the other Tests specified in s 5 would have no application. There is nothing in the Assessment Report to suggest that this process of reasoning was undertaken by the EPA.

201 For these reasons I find that the EPA did not take into account the policy enunciated in each of Position Statement No 9, Guidance Statement No 19, and Environmental Protection Bulletin No 1 in its assessment of the Proposal, and counsel's concession to that effect was properly made.

202 There are a number of miscellaneous issues connected with this ground of review which I must address in the interests of completeness.

The specific heads of statutory power for the policy instruments

203 As I have noted, during the course of oral argument, questions arose with respect to the precise identification of the particular head of statutory power authorising the promulgation and publication of the three relevant policy instruments. Upon reflection, I have concluded that nothing turns upon the identification of the particular head of legislative power authorising each instrument because:

(a) as I have noted, the Act contains a plethora of provisions empowering the EPA to develop and promulgate administrative procedures and policies - unless it is contended that one or other of the policy instruments upon which reliance has been placed in this case was not authorised by one or other of those powers, it is unnecessary to identify the specific powers which correlate to each policy instrument;

(b) the respondents do not contend that publication by the EPA of the three policy instruments relevant to this case was not authorised by one or other of the express powers contained within the Act; and

(c) even in the absence of express legislative power, the majority in Gray held that the legislature can generally be presumed to expect and intend that decisionmakers will develop policies and guidelines in the interests of good government and consistency in the exercise of powers conferred by the legislature.

204 However, in case a different view is taken elsewhere, in my view the powers conferred by s 122 of the Act, to draw up administrative procedures 'in particular for the purpose of establishing the principles and practices of environmental impact assessment', the power conferred by s 16(j) to 'publish reports on environmental matters generally', by s 16(n) to 'establish and develop criteria for the assessment of the extent of ... environmental harm', the conferral upon the EPA of 'all such powers as are reasonably necessary to enable it to perform its functions' by s 17(1), and the authority to 'exercise such powers ... as are necessary or convenient for the performance of the functions imposed' on the EPA by the Act conferred by s 17(3)(h), are quite sufficient, in combination, to provide express sources of the power to issue the three policy instruments relevant to this case. There is also a cogent argument to the effect that the function of preparing and seeking approval for environmental protection policies specifically authorised by s 16(f) of the Act, and the power to 'consider and make proposals as to the policy to be followed in the State with regard to environmental matters' conferred by s 17(3)(d) of the Act may also provide express authority for the policy instruments, but there is a contrary argument to the effect that the function to which s 16(f) refers is concerned only with environmental protection policies coming within pt III of the Act, and a similar argument to the effect that the power to which s 17(3)(d) refers is concerned with the development of proposals for policy to be adopted by others, rather than the EPA. Because, in my view, the other heads of power to which I have referred are quite sufficient to expressly authorise the development and promulgation of the relevant policy instruments, it is unnecessary to express a view upon those arguments.

205 Again for the sake of completeness, I should note that I have not overlooked the observation made by Mason J in PekoWallsend[99] to the effect that not every consideration that a decisionmaker is bound to take into account but fails to take into account will justify the court setting aside the relevant decision, as a factor might be so insignificant that the failure to take it into account could not have materially affected the decision. However, for the reasons I have already given, the policy enunciated in the three published statements to which I have referred was a matter of the utmost significance to the EPA's assessment of the environmental impact of the Proposal.

206 As I have noted, the three policy statements upon which the applicants rely ceased operation in August 2014. However, the validity of the EPA's assessment of the environmental impact of the Proposal must be assessed by reference to the relevant facts and circumstances at the time the assessment was undertaken and, in particular, at the time the EPA decided to recommend that the Proposal may be implemented subject to specified conditions and procedures. Accordingly, the fact that the relevant policies are no longer operative has no effect upon the invalidity of the EPA's purported assessment.

207 The evidence is to the effect that all documents published as Guidance Statements are being progressively reviewed and updated as Environmental Assessment Guidelines.[100] Similarly, the evidence is that documents published as Position Statements are being progressively reviewed and updated as Environmental Protection Bulletins.[101]

208 The evidence does not establish all the policy documents published by the EPA which are currently in operation and which are or could be relevant to the assessment of the environmental impact of the Proposal. Accordingly, it is not possible to form any view as to the extent to which the policy enunciated in the three statements upon which the applicants have relied in support of this ground has been maintained, in some form or another, in the policy documents published by the EPA which are currently in operation. It follows that it is not possible for this court to express any meaningful view as to the consequences of its conclusion that the assessment of the environmental impact of the Proposal undertaken by the EPA was invalid, in terms of the steps properly required to now undertake and complete a valid assessment of the Proposal under currently prevailing circumstances.

209 Put another way, I have concluded that the EPA must take into account all relevant administrative procedures, assessment criteria and policies which it has promulgated and which are operative at the time it undertakes an assessment of the environmental impact of any proposal. However, as the current form of those administrative procedures, assessment criteria and policies are not in evidence, it is not possible for me to express any meaningful view on the extent to which the legal obligation which I have found might necessitate the preparation of another environmental review by the proponent, or a call for further public submissions, although plainly my conclusion will require the EPA to reconsider its decision as to the outcome of the assessment. In any event, it would be undesirable for me to express any view on those issues given that, generally speaking, the validity of administrative actions must be determined retrospectively by reference to what has actually occurred, rather than prospectively by reference to what might or should occur.

Summary and conclusion with respect to this ground of review

210 For the reasons I have given, I have concluded that:

(a) there is an implication to be derived from the subject matter, scope and purpose of the Act to the effect that the EPA is obliged to take into account any relevant administrative procedures, assessment criteria or policies which it has promulgated as a condition of the valid exercise of its function of undertaking an environmental impact assessment;

(b) in this case the EPA did not take into account the policy enunciated in each of Position Statement No 9, Guidance Statement No 19 and Environmental Protection Bulletin No 1, which policy was not only relevant to, but of the utmost significance to, the assessment of the environmental impact of the Proposal.

211 It follows that this ground of review must be upheld. It also follows that the Minister's decision to the effect that the Proposal may be implemented subject to specified conditions and procedures, and which was made in reliance upon the invalid report provided to him by the EPA, is also invalid. It will be for the EPA to determine, in the light of these reasons and the current circumstances, what steps are required to undertake and complete an assessment of the environmental impact of the Proposal which conforms to the obligations imposed upon the EPA by the Act.

212 The third issue raised by the grounds of review is the applicants' assertion that the reasons provided by the EPA in the Assessment Report are inadequate because the Assessment Report fails to deal with the policy enunciated in the three policy statements to which I have referred. In the course of oral argument, counsel for the applicants confirmed that the only respect in which the reasons given by the EPA in the Assessment Report are said to be inadequate is the failure of the EPA to refer anywhere in the Assessment Report to the policy enunciated in the policy statements upon which reliance has been placed, including in particular the failure to address either the presumption that the EPA will recommend against implementation of a proposal which, after all efforts at onsite mitigation have been exhausted, would involve significant residual impacts upon critical environmental assets, and the failure to address the proposition that in such a case, environmental offsets will not be considered as an appropriate means of rendering the proposal environmentally acceptable.

213 Because this ground is limited to a failure to provide reasons for not applying the EPA's policy, it has been advanced only in the alternative to the preceding ground in the sense that it is only pressed if the preceding ground is dismissed. That course is appropriate, because plainly enough the EPA could only include in the Assessment Report reference to matters which it had taken into account. If the preceding ground succeeds, as it has, because I have found that the EPA did not take either aspect of the policy upon which reliance is placed in support of this ground into account, it follows that the EPA could not be expected or required to include reasons relating to such matters within the Assessment Report. Put another way, I have concluded when considering the preceding ground that the inadequacy revealed by the Assessment Report[102] is not the reasons enunciated in the Assessment Report, but the inadequacy of the process of assessment which led to the Assessment Report.

214 As the preceding ground has succeeded, it is unnecessary to deal with this ground of review, and there is no occasion to embark upon the interesting question of the extent of the obligation imposed upon the EPA to state the reasons for its conclusions in a report presented to the Minister pursuant to s 44 of the Act.

Were the environmental factors considered in isolation?

215 The next issue raised by the grounds of review concerns the applicants' assertion that the EPA exceeded the jurisdiction conferred upon it by the Act because it considered each of the key environmental factors which it identified separately and in isolation, rather than in combination.

216 The legal proposition which underpins this ground is the assertion that pt IV of the Act, and s 44 in particular, require the EPA to assess the Proposal in its entirety, and its recommendation to the Minister must be based upon its assessment of the key environmental factors it has identified in the course of its assessment in their entirety. That proposition should be accepted, and I did not understand the respondents to contend otherwise. It is a proposition which flows naturally and inevitably from the inherent nature of the function performed by the EPA under pt IV of the Act, and its obligation to make a recommendation to the Minister as to whether the Proposal may be implemented. Clearly enough the adequate performance of that function requires a consideration of all the environmental factors identified as relevant to the Proposal, viewed in combination rather than in isolation.

217 Therefore the critical question which determines the outcome of this ground of review is whether the EPA did in fact only consider each environmental factor separately and in isolation as the applicants assert. The entire basis for that assertion is an inference which is said to arise from the terms of the Assessment Report itself.

218 As I have noted in the context of the first ground of review, it is a singular feature of the Assessment Report that notwithstanding the EPA's conclusion that the Proposal, if implemented, would have a significant impact upon critical environmental assets even after all efforts at onsite mitigation had been exhausted, nowhere in the Assessment Report is there any specific reference to the possibility or prospect that this conclusion might lead the EPA to recommend against implementation of the Proposal. Rather, the approach taken throughout the Assessment Report is to identify the residual environmental impacts which remain after all efforts at onsite mitigation have been exhausted, and then to identify the environmental offsets which are considered to be sufficient to 'counterbalance' those residual impacts. The question is whether that structure of the Assessment Report sustains the inference that the EPA failed to consider each of the key environmental factors in combination, contrary to the legal proposition which I have accepted.

219 When issues of this kind arise for determination, it is important to remember that when a court is engaged in judicial review of administrative action:

The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.[103]

[T]he reasons of an administrative decisionmaker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[104]

221 In this case, when the Assessment Report is viewed as a whole, a conclusion that its terms give rise to an inference that the EPA failed to consider the key environmental factors which it had identified in combination for the purpose of deciding whether it should recommend that the Proposal may or may not be implemented would be to fall into an error of the kind identified in the passages I have just cited.

222 It would be fanciful to suppose that the members of the EPA were not keenly aware that one of the outcomes of the process of environmental impact assessment which the EPA is obliged to undertake is a recommendation to the Minister as to whether or not the proposal assessed may be implemented. In this case, the summary of the Assessment Report specifically contains a recommendation that 'the proposal be approved subject to the recommended environmental conditions summarised below'.[105] That recommendation follows a portion of the summary in which the residual impacts (after mitigation) of implementation of the Proposal are collected in one paragraph,[106] followed by a paragraph in which all of the environmental offsets proposed are collected in one paragraph.[107] Any inference which might be drawn from the structure of the body of the Assessment Report is rebutted by the consideration of the key environmental factors identified in the body of the Assessment Report in combination with the summary which is at the forefront of the Assessment Report. Accordingly, this ground of review must be dismissed.

Does the condition empowering the CEO to permit construction to commence before the environmental offsets package has been identified invalidate the Assessment Report?

223 This ground of review focuses specifically upon the EPA's recommendation that implementation of the Proposal should be permitted subject to Condition 12-2 which, as I have noted, provides:

12.2 Prior to commencement of construction, or as otherwise agreed by the CEO, the proponent shall submit a Land Acquisition and Management Plan to the requirements of the CEO.

224 I understand the reference to 'the CEO' in this Condition to be a reference to the CEO of the Office of the EPA.

225 The applicants assert that the inclusion of this condition constitutes a constructive failure to exercise the jurisdiction conferred upon the EPA by pt IV of the Act. As I understand the argument, it is asserted that the recommendation that the condition be attached to any approval of implementation of the Proposal is inconsistent with the EPA's conclusion that the Proposal is only environmentally acceptable if environmental offsets in the form of the Land Acquisition and Management Plan are provided. The inconsistency is said to lie in the recommendation of a condition which may result in the offsets never occurring.

226 This last step in the development of the argument reveals its fundamental flaw, which is the misconception of the effect of Condition 12-2 implicit in the proposition. The components of the Land Acquisition and Management Plan proposed by the EPA are specified clearly and unequivocally in Condition 124. The CEO is not given any power to vary the essential components of that Plan. Accordingly, if the Minister were to impose the conditions recommended by the EPA upon his approval of the Proposal (as he purported to do), Main Roads would be under a legal obligation to acquire and manage land having the characteristics specified in the conditions. The imposition of that legal obligation, which could be enforced if necessary, achieves the relevant components of the environmental offsets proposed by the EPA.

227 Proposed Condition 12-2 empowers the CEO to specify the requirements of the Land Acquisition and Management Plan to be submitted by the proponent. When that condition is read in the context of proposed Condition 124, that power must be limited to the form and contents of the information provided to the CEO, not the substance of the Plan, which is specified in unequivocal terms in Condition 124.

228 Condition 12-2 also authorises the CEO to agree that the proponent may commence construction prior to submission of the Land Acquisition and Management Plan. The power which would be conferred upon the CEO if such a condition were imposed is limited to the time at which the Plan is to be provided to him, and does not extend to the question of whether the proponent is obliged to acquire and manage land having the characteristics specified in Condition 124. At the risk of repetition, Condition 122 does not confer upon the CEO any power to dispense with the obligation imposed upon the proponent to acquire and manage land having those characteristics and qualities.

229 In the course of argument in support of this ground of review, it was contended on behalf of the applicants that it was difficult if not impossible to identify any basis upon which the CEO could validly exercise the discretion conferred by Condition 122 without undermining the fundamental basis upon which the EPA was recommending that the Proposal may be implemented. Again, this argument appears to me, with respect, to proceed upon a misconception of the nature and effect of the powers conferred upon the CEO by the recommended condition. To take an example which I put to counsel in the course of argument, if a condition in the terms of Condition 122 were to be imposed upon the approval of the Proposal, the proponent might approach the CEO for permission to carry out minor works, perhaps in preparation for more major works, such as, for example, the installation of survey pegs marking the areas in which particular constructions were to take place in the future. It could well be argued that such work would constitute the commencement of construction. If the CEO was satisfied that the works proposed would not involve any significant harm to the environment and/or that the submission of a satisfactory Land Acquisition and Management Plan was imminent, it would be entirely reasonable to agree that the works proposed could proceed, and such a course would be entirely consistent with the reasoning of the EPA evident in the Assessment Report.

230 This ground of review is based on a misconception as to the nature and effect of proposed Condition 122. The recommendation that such a condition be imposed in any decision that the Proposal may be implemented is entirely consistent with the reasoning enunciated in the Assessment Report and does not involve any constructive failure to exercise the jurisdiction conferred upon the EPA by pt IV of the Act. Accordingly, this ground of review must be dismissed.

231 For these reasons I have concluded that all grounds of review should be dismissed other than the ground based upon the EPA's failure to take into account a mandatory relevant consideration. For the reasons I have given, that ground of review should be upheld. It follows from the success of that ground that the Assessment Report issued by the EPA in respect of the Proposal is invalid. It also follows that the Minister's decision that the Proposal may be implemented subject to specified conditions made in reliance upon the Assessment Report is also invalid. It will be for the EPA to determine, in the light of these reasons and current circumstances, what steps must now be taken to undertake and complete an assessment of the environmental impact of the Proposal in conformity with the legal obligations imposed upon the EPA by the Act.

232 I will invite counsel to provide submissions with respect to the most appropriate form of relief to give effect to these conclusions.

[1] Pursuant to the principles enunciated in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

[2] Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471, 478 [18].

[5] Section 31 of the Act - the Minister may also remit the draft policy to the EPA for reconsideration.

[11] Section 41A of the Act - although the prohibition does not apply to minor or preliminary work done with the consent of the EPA.

[23] 'Info sheet' published by the EPA in May 2014 entitled 'Policy Structure' attachment 1 to the affidavit of Naomi Jane Arrowsmith.

[24] 'Info sheet' published by the EPA in May 2014 entitled 'Policy Structure' attachment 1 to the affidavit of Naomi Jane Arrowsmith.

[25] Affidavit of Naomi Jane Arrowsmith at [17] [18].

[26] Affidavit of Naomi Jane Arrowsmith at [21] [22].

[27] In many of the documents adduced in evidence, the Proposal to extend Roe Highway from Kwinana Freeway to Stock Road is described as 'Roe Highway Stage 8'. It is convenient to adopt the same nomenclature in these reasons.

[31] In 2009, s 100 of the Act allowed appeals to be lodged against decisions of the EPA with respect to the level of assessment of a proposal.

[32] Affidavit of Alanna Bernice Fandry, 2182.

[34] Affidavit of Alanna Bernice Fandry, 2218.

[37] Environment Protection Policy (Swan Coastal Plain Lakes) 1992.

[42] This is the only reference to Position Statement No 9 in the Assessment Report, which contains no reference to Guidance Statement No 19 or to Environmental Protection Bulletin No 1.

[44] See Coastal Waters Alliance of Western Australia Incorporated v Environmental Protection Authority (1996) 90 LGERA 136; Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471.

[50] I have referred to all of these provisions in my review of the Act earlier in these reasons.

[51] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 40.

[52] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 2 ALD 60.

[53] 2 ALD 60, 69 70.

[54] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

[55] Who was then the President of the Tribunal.

[59] As will be seen, that issue was squarely addressed in the later decision of Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189.

[60] Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1.

[61] (1987) 17 FCR 1, 15.

[62] Nikac v Minister for Immigration and Ethnic Affairs [1988] FCA 400; (1988) 20 FCR 65.

[64] [1988] FCA 400; (1988) 20 FCR 65, 81 82.

[65] BHP Direct Reduced Iron Pty Ltd v CEO, Australian Customs Service (1998) 55 ALD 665.

[66] (1998) 55 ALD 665 at 682.

[67] Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189.

[68] [1994] FCA 1052; (1994) 50 FCR 189, 205 - 207.

[69] Minister for Foreign Affairs v Lee [2014] FCA 927.

[70] [2014] FCA 927 [59] [61].

[71] Century Metals and Mining NL v Yeomans [1989] FCA 273; (1989) 40 FCR 564.

[73] [1989] FCA 273; (1989) 40 FCR 564, 592.

[74] AttorneyGeneral (Hong Kong) v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629.

[75] See, for example, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648.

[76] See Minister for Immigration and Border Protection v WZARH [2015] HCA 40.

[77] See, for example, Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1.

[78] Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276.

[79] [2002] WASCA 276 [24] [26].

[80] Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196.

[81] And indeed determines this ground of review in light of a concession made by counsel for the respondents during oral argument.

[82] See also Burgess v Director of Housing [2014] VSC 648 [144] [150], [198] where Macaulay J, citing Gray, considered (in obiter) that the Director of Housing was bound to take into account his own policy as a relevant fact when making a decision.

[88] Notably s 16, s 17, s 122 and pt III of the Act.

[91] Section 16(f), s 17(3)(d) and pt III of the Act.

[92] Notably s 16, s 17 and s 122 of the Act.

[93] As specifically contemplated by s 122 of the Act.

[94] A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [88] [92].

[95] See Re Shire of Carnarvon; Ex Parte Humphrey [2005] WASCA 182 [60].

[96] See Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [108].

[99] Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 40..

[100] Affidavit of Naomi Jane Arrowsmith [17] [18].

[101] Affidavit of Naomi Jane Arrowsmith [21] [22].

[102] And the other evidence to which I have referred.

[103] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 (Neaves, French & Cooper JJ), cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272.

[104] Minister for Immigration and Ethnic Affairs v Wu Shan Liang, 272.