A recent decision by the Federal Court of Australia (Court) paves the way for greater political clarity and procedural transparency by government departments in relation to the policies and guidelines they use to assess environmental impacts of land developments in making decisions about land development applications.
In the judgment handed down on 15 March 2012, Justice Gilmour found developer WA Land Authority (LandCorp) was denied natural justice in a development application decision. The decision was made by the Department of Sustainability, Environment, Water, Population and Communities (Department)’s delegate, the Western Australian Department of Environment and Conservation (Delegate), in accordance with the referral mechanism under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
LandCorp submitted a proposal for a high-density residential, retail and office development at Mandurah Junction (Proposal). The Proposal affected the habitat of listed species protected by the EPBC Act, and accordingly, was referred to the Department (and subsequently the Delegate) for approval. The Delegate found that Proposal was a “controlled action” under the EPBC Act because it was likely to have a “significant impact” on the foraging and breeding habitats of three species of cockatoo (Forest Red-Tailed Black Cockatoo, Baudin’s Black Cockatoo and Carnaby’s Black Cockatoo) as well as vegetation which hosts the Graceful Sun Moth.
LandCorp requested that the Delegate reconsider the decision based on “substantial new information about the impacts of the action” contained in a commissioned scientific report (Johnstone Report). The Johnstone Report concluded that the proposed clearing required by the Proposal would neither have an impact on the Graceful Sun Moth nor the Forest Red-Tailed Black Cockatoo, Baudin’s Black Cockatoo or Carnaby’s Black Cockatoo. While the Johnstone Report noted that the Proposal would involve the clearing some sections which could impact on the feeding habitat of the Carnaby’s Black Cockatoo, it concluded that this “should not adversely affect habitat critical to the survival of the species”.
The Delegate confirmed its original decision that the Proposal was a “controlled action” to the extent that it was likely to have a “significant impact” on Carnaby’s Black Cockatoo, but conceded that the Proposal was unlikely to have a “significant impact” on the Forest Red-Tailed Black Cockatoo, Baudin’s Black Cockatoo or the Graceful Sun Moth (Reconsideration Decision).
LandCorp brought proceedings against the Department in the Court for review of the Reconsideration Decision.
The Key Issues
The primary issue for determination was whether a rule of natural justice requiring procedural fairness had been breached.
LandCorp submitted that the Delegate had based the Reconsideration Decision on internal documentation consisting of “guidelines” and “judgments” documents which had not been disclosed to LandCorp, namely:
- the Guidelines for Proponents on three Western Australian black cockatoos dated June 2009;
- the Significant impact guidelines for three threatened black cockatoos dated July 2010; and
- the Carnaby’s Black Cockatoo Basis for Significant Impact Judgments
LandCorp argued that it had not been offered the opportunity to be heard on the reliability of the Documents or their application to the Proposal.
The Department denied that procedural fairness required LandCorp to be provided with copies of the Documents. They argued that the Documents were not relied on by the Delegate because the Documents did not form part of the Delegate’s brief for the Reconsideration Decision. The Department gave evidence to the effect that it had developed over a number of years, a “systematic approach” on how to apply the EPBC Act to the three listed threatened species of Black Cockatoo. It explained that it had developed the Documents with the aim of establishing that “systematic approach”. The Department submitted that while aspects of that accumulated knowledge may have been included in the Reconsideration Decision brief, it does not follow that the Delegate relied upon the Documents in making the Reconsideration Decision.
The other basis for LandCorp’s claim of denial of natural justice was that the Delegate took into account the clearing of other areas in Mandurah from other approved developments and proposals in assessing the Reconsideration Decision, but that the “cumulative impact assessment” of these other developments and proposals was not brought to LandCorp’s attention.
The Department contended that these were matters of which LandCorp should have been aware given the undisputed substantial growth of Mandurah in recent years and the fact that LandCorp was a State-owned major land developer. The Department also argued that it raised “cumulative impact” issues with LandCorp in a telephone conversation, however, it was found on the evidence that these were only raised “in the most general terms” and that the particular developments referred to and relied upon by the Delegate in the Reconsideration Decision were not brought to LandCorp’s attention.
The Court, comprising His Honour Justice Gilmour, held that the Department had denied LandCorp procedural fairness.
His Honour found that because the “systematic approach” of the Department had been reduced to writing in the form of the Documents, any parts of those Documents that were adverse to LandCorp’s contentions and which were taken into account, should have been disclosed to LandCorp as a mater of fairness to enable it to make submissions to the Delegate. His Honour concluded that Department’s failure to disclose the Documents to LandCorp amounted to a breach of procedural fairness and natural justice.
Similarly, the Court held that the Department’s failure to disclose to LandCorp that it would assess the cumulative impacts of the Proposal was also a breach of procedural fairness as it had left LandCorp in a “guessing game”. His Honour went on to state that the “general failure to put [LandCorp] on notice of the substance of the cumulative impact [assessment]” meant that it could not “adequately direct [its] mind as to what, in that context, needed to be addressed”. His Honour concluded that procedural fairness required the Department “to disclose with specificity what other developments, actual and intended, were to be taken into account”.
The Court ordered that the Reconsideration Decision be quashed and sent back to the Department to be reconsidered according to law and having regard to affording natural justice to LandCorp.
This decision demonstrates that government departments are expected to provide transparency and clarity in their decision making process and to disclose any criteria and additional information they use to form the basis of their decision. In this regard, the decision may prove to shorten the environmental approvals process under the EPBC Act, as developers will be fully informed as to the criteria against which their application is assessed.