Introduction

The Supreme Court’s decision of Save Beeliar Wetlands (Inc) v Jacob(Beeliar Wetlands) confirms that it is important for government to have regard to government policy when decisions are to be made, even where relevant legislation does not expressly require policy to be taken into account.

For private proponents, this means that any published government policy should be taken into account where proposals of any kind are designed and put to government. A failure to take government policy into account may result in delays to the approval of a proposal and further costs incurred in amending and resubmitting proposals that are contrary to published policy.  

The Beeliar Wetlands case concerned a proposal by the Commissioner of Main Roads Western Australia (Main Roads) to extend Roe Highway (the Proposal). Third party applicants sought judicial review in the Supreme Court of Western Australia of the following two decisions:

  1. the decision of the Environmental Protection Authority (EPA) to provide a report to the Minister for the Environment (Minister) recommending that the Proposal be implemented subject to certain conditions; and
  2. the decision of the Minister to allow the Proposal to be implemented subject to certain conditions.

On 16 December 2015, Chief Justice Martin found that the EPA’s decision was invalid as the EPA had failed to take into account its own published policies in making its decision.  Accordingly the Minister’s decision, which was made in reliance of the EPA’s decision, was also found to be invalid. These decisions were quashed and must be remade if the Roe 8 extension is to go ahead as envisaged in the Proposal.2

Background

EPA's policy statements

The Environmental Protection Act 1986 (WA) (the Act) provides for the EPA to prepare and publish environmental policies. Chief Justice Martin considered three policy statements3 which enunciated a policy relevant to the EPA’s and the Minister’s decisions (the Policy Statements). The Policy Statements set out the EPA's policy that there would be a presumption against recommending approval of a proposal where the environmental assets that would be affected are categorised as ‘critical’, and the residual adverse environmental impacts would be ‘significant’.4

The Assessment Report

Following the referral of the Proposal by Main Roads,  the EPA conducted a detailed level of assessment before producing a report on its assessment to the Minister on 13 September 2015 (Assessment Report).

There was no reference made anywhere in the Assessment Report to the policy or the Policy Statements.5 Despite recognising that the residual impacts of implementing the Proposal would be significant (though failing to acknowledge that it would impact ‘critical’ assets), the EPA recommended that the Proposal be approved subject to certain conditions, including the provision of environmental offsets.6

On 2 July 2015, the Minister published his determination to allow the Proposal to be implemented subject to certain conditions.7

The decision

The applicants relied on three grounds of review in relation to the EPA’s decision and a further ground of review in relation to the Minister’s decision. The ground of review in relation to the Minister’s decision depended entirely on the proposition that the Minister’s decision was invalid as he relied on the invalid Assessment Report.8

Chief Justice Martin upheld the ground that the EPA failed to take into account a relevant consideration which it was obliged to take into account.

In considering this ground, his Honour found that the Act did not expressly require the EPA to consider its published policy statements. However, his Honour applied the accepted legal principle in Peko Wallsend9 that an obligation to take a policy into account can be derived by implication from the subject matter, scope and purpose of the Act.10

His Honour found that there was an implication that the EPA was obliged to take into account the Policy Statements. This implication derived from the general structure of the Act under which the EPA is responsible for developing administrative procedures, criteria and policies, and from the characteristics of the environmental impact assessment.11  Further, it derived from the fact that the consequences which would flow if the EPA was free to ignore its own published policies would seriously undermine the legislatives objectives of the Act.

Accordingly, as it was clear the EPA had not taken the policy into account, the EPA’s decision was found to be invalid, as was the Minister’s decision, which had been made in reliance on the Assessment Report. The other grounds of review were dismissed.

Consequences of the decision

This decision reaffirms that any proponent or person making submissions in relation to a proposal should, like the EPA, have regard to any EPA policies that may have bearing on the proposal. It also has broader implications; the obligation to take policy into account may be implied by other acts involving administrative decisions, such as the Mining Act 1978 (WA). The Mining Act does not have the same extensive provisions for the creation of policy as the Act, but the Department of Mines and Petroleum (DMP) has published guidance notes on its website that address the manner in which Departmental officers will exercise various delegated powers. Although the Minister for Mines and Petroleum has broad discretion in his or her decision making under the Mining Act, there may still be an implied obligation to take the published guidance notes into account when making any decision pursuant to powers conferred by the Mining Act. As such, when preparing any documents in relation to an administrative decision, it is prudent to consider any government policy, such as DMP guidance notes, that may be applicable.