In brief

A decision of the Western Australian Supreme Court handed down on 15 March 2011 has established important principles relating to strategic assessments and management of environmental impact assessments in Western Australia. In particular:

  • the intent and scope of strategic assessments has been clarified
  • the importance of proposal scoping has been reiterated, and
  • the court has suggested clearing for environmental impact assessment can be the subject of a clearing permit.  

Background

The Roe case related to the strategic assessment of the proposed gas hub precinct in the area known as James Price Point, north of Broome. An application was brought seeking to overturn the grant of a clearing permit by the CEO of the Department of Environment and Conservation (DEC) for the purposes of investigative works in the James Price Point area.

The applicant’s case relied on section 51F of the Environmental Protection Act 1986 (WA) constraining the grant of a clearing permit where ‘related to’ the implementation of a significant proposal undergoing assessment. It also relied on the proposal undergoing assessment being categorised as a ‘significant’ proposal not a ‘strategic’ proposal.

Whilst the clearing permit was not being sought for the purpose of implementing a significant proposal, namely actually developing or constructing a gas hub, the applicant argued that the proposed gas hub precinct was a significant proposal. Further, it was alleged that the clearing permit could not be granted as the investigative works were related to that significant proposal.

The court decided that the clearing permit was validly granted. The proposed gas hub precinct proposal was a strategic proposal and not a significant proposal. As a result, the bans on making approval decisions (including clearing permit decisions) whilst the proposal was undergoing assessment did not apply.

Impact of decision

The Roe case emphasises the importance of project scoping in defining what constitutes a proposal, particularly in the strategic assessment context. In Western Australia, the case also provides guidance as to the circumstances in which clearing permits may be issued for environmental impact assessment purposes while a strategic or significant proposal is undergoing assessment by the Environmental Protection Authority (EPA).

The decision will also be of benefit to proponents by clarifying:

  • what constitutes a ‘significant’ versus ‘strategic’ proposal
  • when it is appropriate to refer a strategic or significant proposal (or both) to the EPA
  • the different processes applicable to the assessment of each, and 
  • the appropriate conduct of secondary decision makers in relation to strategic assessments, significant proposals or proposals which are both strategic and significant.