The port City of Fremantle, now considered by many as part of greater Metropolitan Perth, has been home to Fremantle Port since the turn of the 19th Century. For more than a century, 90% of Western Australia’s imports and 30% of its exports have moved through the port.

In 2014, during their first budget, the Abbott Federal Government allocated federal funding supplemented by state funding to upgrade and expand Roe Highway, in order to improve access to and from Fremantle for heavy vehicles transporting freight. Since announcing the election promise, the first stage of the project (known as ‘Roe 8’) has been shrouded in controversy. The arguments opposing the project are many and varied, spanning aboriginal heritage issues, to the compulsory acquisition of residential land. One point of interest for environmental lawyers, however, is the decision this July of the Court of Appeal of Western Australia to overturn a finding that the Environmental Protection Authority (EPA)’s environmental impact assessment of the project was invalid.

Decision on appeal

In December last year, the Chief Justice of the Supreme Court of Western Australia found in favour of the Save the Beeliar Wetlands environmental group, which had sought judicial review of the EPA’s assessment of the project. His Honour found that the EPA’s recommendation to the State’s Environment Minister was invalid, along with his subsequent approval because the EPA had not taken account of its own policies at the time it made its decision and reported to the Minister.

In summary, the relevant policies provided that where the EPA concluded that the implementation of a proposal would result in significant residual impacts to critical environmental assets (despite mitigation efforts), there was a presumption against recommended approval.

At the time, many viewed the decision as providing clarity regarding how the decision-making process of the EPA should be conducted. In particular, the application of due regard in policy and decision-making. The decision was viewed as reiterating the EPA’s function as an independent decision maker, standing separately to the State Government.

Court of Appeal

On appeal by the State, the full bench of the Court of Appeal overturned the original decision. The Court of Appeal instead considered that the relevant policies were ‘permissive’ relevant considerations, as opposed to ‘mandatory’ considerations.

Read in the context of other provisions of the Environmental Protection Act 1986 (WA) (EP Act), the Court considered that amongst other reasons, that the impugned policies were not in the category of ‘approved policies’ which was a mechanism under which they could be elevated in the EP Act. The Court opined that those approved policies provided sufficient certainty to stakeholders and proponents.

What next?

In an attempt to deliver on its key election promise, the State government is reportedly pressing ahead to enter into contracts to construct Roe 8 before the State election early next year. The Save Beeliar Wetland group is expected to appeal the decision to the High Court.