Introduction

At the end of last year, the Supreme Court of Western Australia considered a decision of the Environmental Protection Authority (EPA) to recommend to the Minister that a Proposal to extend Roe Highway (the Proposal) be implemented. Chief Justice Martin found that the decision was invalid as there was an implied obligation to take certain EPA policies (the Policies) into account, which the EPA had failed to do (the Original Decision).[1] Accordingly, the decision of the Minister to allow the Proposal to be implemented based on the recommendation of the EPA was also invalid.

On Friday 15 July 2016, the Court of Appeal upheld the Government’s appeal of the Original Decision. That is the EPA’s recommendation of the Proposal, and the Minister’s decision to allow the implementation of the Proposal, are valid.[2]

In our article on the Original Decision, we explained that it reaffirmed that anyone making submissions in relation to a proposal should have regard to any relevant EPA policies (whether or not the EPA was referring to them). The Appeal Decision clarifies that a failure by EPA to take into account its own policies is not necessarily fatal to the validity of an implementation decision.

The decision

In the Original Decision, Martin CJ found that the subject matter, scope and purpose of the Environmental Protection Act 1986 (WA) (EP Act) led to the conclusion that the EPA was bound to take into account the Policies and a failure to do so invalidated any decision.[3] The sole ground of appeal before the Court of Appeal was that Martin CJ erred in law in holding that the Policies were mandatory relevant considerations.

The Court of Appeal accepted that the obligation to consider certain matters under legislation may arise by implication.[4] However, they found that the express provisions of the EP Act “leave no room for an implication”[5] that the Policies were mandatory relevant considerations in the EPA’s decision.

In reaching this conclusion, the Court of Appeal considered a number of aspects of the EP Act which weighed against a finding that the Policies were a mandatory relevant consideration, including:

  1. Pt III sets out an extensive process for the formulation of approved policies, which are express relevant considerations;[6]
  2. section 44(2) specifies matters the EPA is obliged to set out in its assessment report;[7]
  3. the EPA assessment report is a long way from the final decision;[8]
  4. the EPA’s role is to perform an expert evaluative and advisory function, not exercise a discretionary power;[9] and
  5. the EPA is in sole control of the form, content, timing and procedure of any environmental review.[10]

As it was not mandatory for the EPA to apply the Policies, the EPA’s decision to recommend implementation of the Proposal to the Minister, as well as the Minister’s decision to allow implementation of the Proposal, are both valid.

Consequences

The Court of Appeal’s decision clarified that the EPA was not required to take into account certain policies in its decision making. There remains some uncertainty, as the Court’s decision does not exclude the possibility that some policies could require consideration in relation to other decisions under the EP Act. The EPA will now hopefully take measures to simplify its policy framework, following the recommendations of the independent review.[11]

Although the Court of Appeal’s approach somewhat relaxed the EPA’s obligations in relation to its process of making recommendations (in that it is not necessarily required to take into account all policies), it is important to recognise that this decision only related to certain EPA policies. It remains necessary for an administrative decision maker to consider policy when expressly required to do so by legislation, such as the ‘approved policies’ under the EP Act. Also, an obligation to consider policy may still arise by implication, although it did not do so in this case. For those reasons, it remains prudent to consider (and potentially to expressly address) any government policy that may be applicable when preparing documents such as a proposal the subject of an administrative decision or recommendation.

Finally, it is likely that this decision will be subject to an application for leave to appeal to the High Court, so watch this space.