Save the Ridge Inc v National Capital Authority

REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal against a decision given earlier today by Stone J. Her Honour dismissed a notice of motion filed by the appellant in the principal proceeding, Save the Ridge Inc, in which it sought an interlocutory injunction, pursuant to s 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('the Act') and the Federal Court Rules. The proposed injunction was to prohibit the first respondent, the National Capital Authority ('the NCA'), from granting further works approvals; and to prohibit the second respondent, the Australian Capital Territory - that is, the ACT government - from 'continuing clearing, construction or any work whatsoever in respect of the Gungahlin Drive Extension freeway from the Barton Highway to Glenloch Interchange in the Australlan [sic] Capital Territory' ('the GDE'). Stone J granted leave to appeal from her decision. 2 Work on the first stage of the GDE was proceeding during the hearing of the appeal. Therefore, the matter was argued succinctly before us; but it was argued sufficiently for us to form an opinion about the correct result. I am of the opinion that the appeal ought to be dismissed and the orders of Stone J affirmed. However, I base my decision on different grounds to those adopted by her Honour. 3 It is common ground that the critical provisions of the Act are ss 28, 523 and 524. 4 Section 28(1) provides: 'The Commonwealth or a Commonwealth agency must not take inside or outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction.' Section 28(1) then refers to civil penalties. 5 The term 'Australian jurisdiction' is defined by s 5(5) of the Act so as to include the land and waters of Australia. 6 Subsection (2) of s 28 sets out a list of circumstances in relation to which subs (1) does not apply. It is common ground, at least for present purposes, that none of these circumstances applies to this case. Consequently, subs (2) does not derogate from the force of subs (1). It is not necessary to refer to the provisions of subss (3), (4) or (5). 7 Section 523 of the Act contains a definition of the word 'action'. By that section, the word includes a project, a development, an undertaking, an activity or series of activities and an alteration of any of those things. It seems to be common ground, for present purposes, that relevant actions of the NCA fall within the conduct described in this definition, possibly as a project or undertaking, possibly as an activity or series of activities. 8 It is also common ground, for present purposes, that the actions complained of have, will have, or are likely to have a significant impact on the environment, being the local environment in Canberra. 9 Section 524 qualifies s 523 by setting out things that are not 'actions' for the purposes of the Act. These things include, by subs (2): 'A decision by a government body to grant a governmental authorisation (however described) for another person to take an action'. 10 The term 'government body' is defined by subs (1) of s 524 so as to include a 'Commonwealth agency'. It is common ground that the NCA is a 'Commonwealth agency' within the meaning of the Act. 11 Stone J refused the application for interlocutory relief on the basis that the case sought to be made in the principal proceeding by the appellant was not fairly arguable. The critical passage in her reasons for judgment is para 10, where her Honour said: 'I accept that the first respondent is a "Commonwealth agency" within the meaning of s 28(1) of the Act; see s 528 of the Act. That being so, if the first respondent takes "an action" that has the effect referred to in s 28(1) then it would be in breach of the Act. In my view, however, taking into account the definitions in s 524 and 525, the amendments and authorisations made by the first respondent are not "actions" within s 28(1). In particular, s 524(2) specifically states that granting a governmental authorisation "however described" for another person to take an action is not an action. For that reason the first respondent also does not fall within the ambit of s 28(1) and, insofar as the application relates to the first respondent, there is also no serious question to be tried.' 12 The reference by Stone J to s 525 of the Act may be an error. The only function of that section is to define the term 'Commonwealth area' for the purposes of the Act. It is not suggested by any party that this definition is relevant to the present case. 13 I think it is clear, and it is apparently common ground between the parties, that the second respondent, the Australian Capital Territory, is not a 'Commonwealth agency' within the meaning of the Act. Consequently, there is no question of that respondent having breached the Act. However, it is said that the NCA, which is a Commonwealth agency, breached the Act. 14 The evidence discloses two relevant types of activity by the NCA. 15 First, it appears that, in the year 2003, the NCA twice submitted amendments to the National Capital Plan to the (Commonwealth) Minister for Territories ('the Minister') for approval. As I understand the position, that is a master plan governing the general planning of Canberra. It appears that, in the form in which it existed at the time of creation of the NCA, the National Capital Plan showed a proposed extension of what is now called 'Gungahlin Drive' but was then named 'the John Dedman Parkway'. Apparently this extension had been shown on the plan since 1984 as a 'proposed road', with accompanying text indicating that the final alignment for the road had not been chosen. 16 The NCA was created in 1989 under the name 'National Capital Planning Authority', a name which it held until 1997. Immediately after its creation, the NCA took over some of the functions of the former planning authority, the National Capital Development Commission. The NCA subsequently reviewed the possibility of extending the John Dedman Parkway. There was controversy about that possibility. Inquiries were held. Consultants were employed. The NCA had discussions with the ACT government. Various alternatives were considered. Along the way there was a change of position by the ACT government. The ACT government ultimately expressed preference for a route dubbed 'the western route' but the NCA preferred 'the eastern route', the site of the present activity. In the end, the ACT government accepted the view of the NCA; perhaps it felt it had no alternative if the freeway was to be built. 17 In early 2003, the NCA submitted an amendment to the National Capital Plan to the Minister for approval. The effect of the proposed amendment was to change the status of the freeway from 'proposed' to 'existing' and to confirm that it would be built on the eastern route. The amendment was accepted by the Minister. The amendment was gazetted on 3 March 2003. A motion for disallowance of the amendment was moved in the Senate. The motion was resolved on 19 August 2003. It was defeated. 18 In the meantime, the NCA had submitted a further amendment to the National Capital Plan to the Minister, reducing the size of the Black Mountain Nature Reserve. This amendment was intended to enable the proposed freeway to be constructed partly on the land excised from the Nature Reserve. The amendment was gazetted on 20 August 2003. Again, there was a motion of disallowance in the Senate. On 13 October 2003, this motion was also defeated. 19 The second type of activity by the NCA was in relation to the granting of works approvals in respect of construction of the GDE. Relevant approvals were given in February and March 2004. There may also have been later approvals but the evidence does not provide detail about that. 20 As set out above, the activities of the NCA fall into two distinct areas: first, submitting two amendments to the National Capital Plan to the Minister for approval and second, approving works proposed to be undertaken by Roads ACT, the ACT government construction authority. 21 It seems to me, perhaps without there being a substantial argument to the contrary, that the latter actions of the NCA fall within the exclusion contained in s 524(2) of the Act. Each work approval was a decision by a government body to grant a governmental authorisation for another person to take an action. 22 The critical question concerns the former activities: submitting amendments to the National Capital Plan to the Minister for approval. As is apparent from the extract from her judgment I have read, Stone J was of the opinion that these activities are also excluded by s 524(2). 23 The matter was not fully argued before us, so I do not wish to express a final opinion. However, with respect, I do not share her Honour's view. It presently seems to me that, in submitting amendments to the National Capital Plan to the Minister for approval, the NCA was not exercising a regulatory function in relation to activities of others. It was acting as a principal decision-maker, performing a discretionary function conferred by statute upon it. Accordingly, I do not share Stone J's view that there is no arguable basis for the case sought to be made against the NCA. Notwithstanding this, it seems to me her Honour was correct to refuse to grant an interlocutory injunction. 24 It will be obvious, from the history I have recounted, that the events that comprise the only viable case that is sought to be made against the NCA were complete by the date of gazettal of the second amendment to the National Capital Plan on 20 August 2003. Even if one takes account of the fact that there was a motion for disallowance of the second amendment in the Senate, that was disposed of by 13 October 2003. 25 As I see the situation, it would have been open to the appellant to bring a proceeding attacking the actions of the NCA in proposing the amendments to the National Capital Plan at any time after the date of the gazettal of those amendments, if not before. Once the second disallowance motion was rejected on 13 October 2003, it should have been clear to the appellant that, in terms of legal action, it had little choice but to take that step. 26 The appellant did in fact bring a proceeding concerning the GDE in this Court on 12 December 2003. That proceeding was brought against the Minister for the Environment and Heritage, that is, the Commonwealth Minister. It challenged a decision of this Minister's delegate that the proposal by Roads ACT to extend Gungahlin Drive was not a 'controlled activity' within the meaning of the Act. It is, I think, readily apparent that it would have been possible to have structured that proceeding so as to include a challenge to the actions of the NCA along the lines of the challenge sought to be made in this proceeding. That was not done. Instead, the proceeding commenced on 12 December 2003 was discontinued before trial. 27 Between the date of discontinuance of the earlier proceeding (6 February 2004) and the date of institution of the present principal proceeding (10 June 2004), Roads ACT obtained the necessary works approvals and let a contract for the carrying out of the first stage of the works, including clearing the substantial number of trees on the line of the proposed road extension. Affidavit evidence indicates that the required tree clearing is now 80 per cent complete; perhaps it is a little more than that, bearing in mind that work has continued since the affidavit was made. Substantial amounts of public money have been expended on the works and the ACT Government is bound by a contract under which it would have to pay compensation to the contractor for any delay. 28 It seems to me that, in these circumstances, it would be an incorrect exercise of its discretion for the Court to grant the interlocutory injunction now sought by the appellant. 29 I appreciate the difficulties that have faced the appellant in bringing this proceeding. The appellant is a non-profit incorporated body, made up of persons concerned about protection of the Canberra environment and, especially, an area of land through which the GDE is proposed to run. That is indicated by the name of the appellant, Save the Ridge Inc. I appreciate the magnitude of the task of such an organisation in raising substantial funds. I appreciate also that such an organisation often has difficulty in obtaining suitable legal advice and representation, although I would like to think that the Canberra legal profession will always provide pro bono assistance in a worthwhile cause to a local environmental organisation. It seems the appellant has had some such assistance in its struggle to prevent construction of the GDE. 30 Unfortunately, and I say this with regret and respect to all concerned, it seems that nobody undertook a rigorous analysis of the legal situation before physical works had advanced to a point at which it became unreasonable to stop them. Had there been a proper analysis of the situation at an earlier point of time, it would have been possible for the appellant to challenge the actions of the NCA, in submitting the relevant amendments to the National Capital Plan to the Minister, before tree clearing commenced and before a legal challenge came to impose an unreasonable burden on the ACT government. 31 As I say, I understand the difficulties faced by the appellant. However, the Court must also take account of the position of the respondents in considering the effect of the appellant's delay upon the Court's exercise of discretion. 32 Having regard to the events which have ensued since the opportunity arose for the appellant to challenge the amendments submitted to the Minister by the NCA, it would not be a correct exercise of discretion for us to grant an interlocutory injunction. Accordingly, I favour dismissing the appeal against Stone J's order. What this will mean, in terms of the future of the litigation, is for the parties to consider. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.