Save the Ridge Inc v Commonwealth of Australia

Federal Court of Australia|2005-01-20|Before: Whitlam J

REASONS FOR JUDGMENT 1 This case concerns two amendments of the National Capital Plan made pursuant to the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ('the PLM Act'). The applicant alleges that s 28(1) of the Environment Protection and Biodiversity Conservation Act (Cth) ('the EPBC Act') applies to activities of the National Capital Authority undertaken prior to the making of those amendments. The National Capital Authority is established by the PLM Act. It administers the National Capital Plan, and its functions include keeping that plan under constant review and proposing amendments to it when necessary. 2 Section 9 of the PLM Act provides that the object of the National Capital Plan is to ensure that Canberra and the ACT are planned and developed in accordance with their national significance. The matters to be covered in the National Capital Plan are dealt with in the following provision: '10 (1) The Plan may specify areas of land that have the special characteristics of the National Capital to be Designated Areas. (2) The Plan: (a) shall define the planning principles and policies for giving effect to the object of the Plan and, in particular, shall set standards for the maintenance and enhancement of the character of the National Capital and set general standards and aesthetic principles to be adhered to in the development of the National Capital; (b) shall set out the general policies to be implemented throughout the Territory, being policies of: (i) land use (including the range and nature of permitted land use); and (ii) the planning of national and arterial road systems; (c) may set out the detailed conditions of planning, design and development in Designated Areas and the priorities in carrying out such planning, design and development; and (d) may set out special requirements for the development of any area (not being a Designated Area), being requirements that are desirable in the interests of the National Capital.' 3 The National Capital Plan came into effect on 21 December 1990. The general principles and policies for planning national and arterial road systems are set out in Chapter 6 of Part One, which states that the main elements of the arterial road systems are shown in Figure 1 General Policy Plan - Metropolitan Canberra. As promulgated, Figure 1 identified a proposed arterial road through the Hills, Ridges and Buffer Spaces between Belconnen Way/Barry Drive and the Barton Highway. It was noted that the final alignment of this road was yet to be determined by the National Capital Authority. 4 Seven major categories of land use are adopted in the National Capital Plan. Planning policies, including a range of permitted uses, are set out for each category. These policies do not confer any rights to use land for any purpose. The concept of the National Capital Open Space System is incorporated in Chapter 8 of Part One, where the principles and policies for four separate land use categories are set out. One of those categories is Hills, Ridges and Buffer Spaces. A road is a permitted use in that category. A part of this land use area identified at Figures 23-26 is specified under s 10(1) of the PLM Act as a Designated Area to be known as The Inner Hills. Black Mountain is included in The Inner Hills Designated Area. 5 Figure 1 was amended by Amendment 41 of the National Capital Plan, which took effect on 4 March 2003. The broken black line representing the proposed arterial road described at [3] above was deleted, and a firm black line representing an existing arterial road was inserted generally along the eastern edge of the District of Belconnen Urban Area. 6 Figure 24 was altered by Amendment 46 of the National Capital Plan, which took effect on 27 August 2003. The heavy black line representing the boundary of The Inner Hills Designated Area where it adjoins the Caswell Drive road reserve as it passes the suburb of Aranda was deleted and redefined to the east. This represented the new boundary of The Inner Hills Designated Area including the Black Mountain nature reserve. 7 The applicant alleges in paragraph 3 of its amended application that: 'The NCA [National Capital Authority] has taken within Australia activities causing the planning, construction and operation of the GDE [Gungahlin Drive Extension]. Particulars: (a) The activities undertaken by the NCA during 2001 and 2002 and set out in the document titled Gungahlin Drive Assessment Information Kit, dated December 2002, and forming annexure B to the second affidavit of Julie Murphy herein. (b) In early 2003, the NCA submitted Amendment 41 to the National Capital Plan and a report on its consultations in relation thereto to the Minister pursuant to s 18 of the Australian Capital Territory (Planning and Land Management) Act 1988. (c) In late 2002 and early 2003, the NCA prepared Draft Amendment ("DA") 46 to the National Capital Plan, in accordance with the Authority's decision taken on 22 December 2002, particulars of which are provided in the Information Kit referred to in (a) above. (d) On 15 February 2003, the NCA placed DA 46 on public exhibition pursuant to s 15 of the Australian Capital Territory (Planning and Land Management) Act 1988, and on or after that date carried out the other activities prescribed by that section. (e) In July 2003, the NCA submitted Amendment 46 and a report on its consultations in relation thereto to the Minister pursuant to s 18 of the Australian Capital Territory (Planning and Land Management) Act 1988. The NCA's activities in relation to the GDE when viewed collectively amount to an "action" within the terms of the Environment Protection and Biodiversity Conservation Act 1999.' 8 The Gungahlin Drive Extension ('GDE') is the name used for the arterial road between the Barton Highway and Belconnen Way that is the subject of Amendment 41 and for a section of arterial road south of Belconnen Way. The southern section follows the alignment of the existing Caswell Drive road reserve to the Glenloch Interchange near Lake Burley Griffin. Amendment 46 relates to this section of the GDE. 9 The 'information kit' referred to in subparagraph (a) of the particulars describes the preparation of the draft of Amendment 41 by the National Capital Authority, its extensive consultation process and its ultimate decision not to alter the draft along lines favoured by the ACT Government. The particulars in subparagraphs (b)-(e) speak for themselves. It is striking that the impugned conduct stops at the point at which each draft amendment of the National Capital Plan was submitted to the Minister. However, even accepting this end-point, the matters selected by the applicant omit an important anterior fact. At the time when each draft amendment was submitted to the Minister, the ACT planning authority did not object to any aspect of the draft. If it had done so, the National Capital Authority would have been required under s 18 of the PLM Act to report that fact to the Minister and, in addition, the Minister would have been constrained by s 19(2) of the PLM Act in the exercise of his powers until after he had consulted with the ACT Government. 10 For present purposes the key provisions of the PLM Act are: '11 (2) The Commonwealth, a Commonwealth authority, the Territory or a Territory authority shall not do any act that is inconsistent with the [National Capital] Plan.

12 (1) No works shall be performed in a Designated Area unless: (a) the proposal to perform the works has been submitted to the Authority together with such plans and specifications as are required by the Authority; (b) the Authority has approved the works in writing; and (c) the works are in accordance with the Plan.' Section 4 of the PLM Act also contains the following definition: '"works" includes:

(a) the construction, alteration, extension or demolition of buildings or structures; (b) landscaping; (c) tree-felling; or (d) excavations; but excludes anything done inside buildings or structures.' 11 Section 28(1) of the EPBC Act relevantly provides that the Commonwealth 'must not take … an action that has, will have or is likely to have a significant impact on the environment'. Section 528 of the EPBC Act provides that the word 'action' has the meaning given by Subdiv A of Div 1 of Pt 23 of that Act. Section 523 in Subdiv A provides: '(1) Subject to this Subdivision, action includes:

(a) a project; and (b) a development; and (c) an undertaking; and (d) an activity or series of activities; and (e) an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).' The applicant has obviously relied on par (d) of that definition in framing paragraph 3 of its amended application. 12 Counsel for the applicant submits that, in proposing amendments to the National Capital Plan, the National Capital Authority is taking 'an action' that may be covered by s 28(1) of the EPBC Act. He relies on dictionary definitions to submit that the meaning of that noun is not 'confined to physical activities like construction works.' That may be so, but his submission must be rejected. The PLM Act makes it clear that a draft amendment has no effect whatsoever. The mere submission of such a draft to the Minister is, by itself, incapable of having any 'impact on the environment'. This conclusion disposes of the first question for decision. 13 The other question for decision addresses 'the making' of Amendment 41 and Amendment 46. This is not an expression used in the PLM Act, which focuses on the date an amendment takes effect. Section 22(4) of the PLM Act makes that clear. However, when the Minister approves a draft amendment, s 23 brings s 21(1) into play so as to require the Minister to publish notice of such approval. Such an amendment may be regarded as made when it comes into effect. 14 Plainly neither Amendment 41 nor Amendment 46 authorised, in terms, the 'construction and operation of the GDE'. Their precise effect is described at [5]-[6] above. The National Capital Plan expressly states that the policies identifying permitted uses do not confer any rights to use land for any purpose. Section 11(2) of the PLM Act does not operate to authorise any particular act, such as the construction of a road. I accept that the planning for the GDE is affected by Amendment 41 and Amendment 46. Nonetheless, in publishing a notice of approval required by s 21 of the PLM Act, the Minister administering that Act does not, in my opinion, 'take … an action' for the purposes of s 28(1) of the EPBC Act. 15 The scheme of the EPBC Act has been recently explained by the Full Court in Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190. Part 7 of the EPBC Act deals with how the Environment Minister decides whether approval is needed for the taking of an action for the purposes of s 28. It is posited upon the existence of 'a proposal to take an action'. The Full Court emphasized (at [57]) the importance of the Minister considering 'each consequence which can reasonably be imputed as within the contemplation of the proponent of the action'. In the present case I cannot conceive how inserting a firm black line on Figure 1 to denote an arterial road or redefining on Figure 24 by a heavy black line the boundary of a Designated Area could possibly be a proposal for action susceptible to consideration under Pt 7 of the EPBC Act. 16 Section 21 of the PLM Act requires the Minister to publish notice of his approval. It would be absurd to suggest that the Environment Minister could displace Parliament's command and decide that such publication is a 'controlled action' within the meaning of s 67 of the EPBC Act. This latter Act did not effect a partial repeal of the PLM Act so as to produce an instance of indirect amendment such as that identified by McHugh J in Kartinyeri v Commonwealth (1998) 195 CLR 337 at 353-354.

17 The publication of the notice of approval is also the trigger for the laying of the amendments before each House of Parliament. The scrutiny provided by s 22 of the PLM Act ensures that Parliament has the final say on the contents of the National Capital Plan. (Prior to the enactment of the PLM Act, the plan of lay-out of the city of Canberra had been under the ultimate control of Parliament since it was first published on 19 November 1925 in accordance with s 4 of the Seat of Government (Administration) Act 1924.) The PLM Act, not the EPBC Act, governs the making of amendments to the National Capital Plan.

18 Counsel for the respondents also contend that each of Amendment 41 and Amendment 46 is a decision 'to grant a governmental authorisation (however described) for another person to take an action' and thus not an 'action' by virtue of s 524(2) of the EPBC Act. I reject this contention because neither amendment purports to grant authorisation for 'another person', that is, a person other than the grantor, to do anything. Counsel for the first respondent relied on the meaning attributed to the phrase 'specifically authorised' in s 43A(1)(b) of the EPBC Act by Sackville J in Minister for the Environment and Heritage v Greentree (No 2) [2004] FCA 741 at [153]. However, his Honour's view of the scope of that quite different phrase depended on the effect of s 76 of the Environmental Planning and Assessment Act 1979 (NSW). There is no equivalent provision in the PLM Act.

19 The amended application also challenged four works approvals granted by the National Capital Authority to Roads ACT for preliminary works construction of the GDE pursuant to s 12(1)(b) of the PLM Act. Counsel for the applicant now concedes that s 524 of the EPBC Act applies to these decisions.

20 In accordance with these reasons the separate questions will be answered in the negative. I should note that the proposed construction and operation of the GDE was referred to the Environment Minister by Roads ACT pursuant to s 68 of the EPBC Act and that on 19 September 2003 his delegate decided that the proposed action was not a controlled action. The applicant cannot succeed in any part of its claims in this proceeding. My tentative view is that it should be dismissed with costs. I shall hear the parties on this question.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Solicitor for the first respondent: Australian Government Solicitor

Counsel for the second respondent: JE Griffiths SC with CM Erskine

Solicitor for the second respondent: ACT Government Solicitor

Date of hearing: 27 September 2004

Date of judgment: 20 January 2005

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