Overview and take-home points
In the recent decision of Save Beeliar Wetlands (Inc.) v Commissioner of Main Roads  FCA 4, the Court dismissed an application for an interlocutory injunction that sought to halt construction of the extension of the Roe Highway in Western Australia. More specifically, the application sought to prevent the carrying out of further works which were allegedly damaging to the surrounding black cockatoo and forest red tailed cockatoo habitats. The basis of the Court’s rejection of the application was its interpretation of a pre-condition to approval of the works which related to the offsetting of environmental impacts.
Interpretation of conditions of approval will always depend on the wording of the particular condition. Here it was found that the approval did not require the developer to provide evidence establishing that the offset properties met a certain standard as a condition precedent to the commencement of construction works. It also did not require the Minister to be satisfied that the offset properties met this standard prior to commencement.
The case highlights the need for developers to review the drafting of offset requirements in approvals to ensure that the wording of these conditions is sufficiently clear to exclude interpretations that require proof that offset properties meet a certain standard prior to commencement of works. Failure to do so may result in costly delays.
On or about 21 October 2015, an approval was granted to, the Western Australia Commissioner of Main Roads (‘the Commissioner’), by a decision maker with delegated authority from the Commonwealth Minister for the Environment and Energy (‘the Minister’). The approval was to extend the Roe Highway in Western Australia.
The approval was granted pursuant to ss 130(1) and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and was made subject to a number of conditions, including several conditions relating to the offsetting of loss of black cockatoo habitat as a result of the works.
Construction on the Roe Highway extension began on 5 December 2016. On 30 December 2016 the applicant, Save Beelier Wetlands (Inc.) applied to the Federal Court of Australia for an interlocutory injunction to restrain the carrying out of construction and associated works to the extent that these works would affect the habitat of two endangered birds, the Carnaby’s black cockatoo and the forest red tailed cockatoo.
Relevant conditions of the approval
The conditions of the Minister’s approval relevant to the case were as follows:
Offsetting of residual impacts
To offset the loss of black cockatoo habitat, prior to commencement, the approval holder must provide the Department with written evidence that funds have been provided to the DPAW for the acquisition of an environmental offset property. The written evidence must include a description and map clearly defining the location and boundaries of the offset property and be accompanied with the offset attributes and a shapefile.
Within 12 months of the commencement of the action, the approval holder must provide the Department with written evidence, including certificates of title, that the offset property has been transferred to the State of Western Australia for the purpose of addition to the conservation estate.
Within 5 years of the commencement of the action, the approval holder must provide funds to DPAW to assist in the management of the offset property following the transfer of the land as described in condition 8. The funding must be adequate for DPAW to maintain the quality of black cockatoo habitat within the offset property for at least 20 years. The approval holder must consult with DPAW, in determining the amount of necessary funding to achieve the aims of this condition. Once the funding has been provided to DPAW, the approval holder must provide written evidence of this to the Department.
The applicant argued that, properly construed, condition 7 of the approval required that, as a condition precedent to the commencement of the construction works, the Commissioner produce to the Commonwealth Department of the Environment (‘the department’) evidence which established on an objective basis that the proposed offset properties met a certain standard. This was that the proposed offset properties contained at least 523 ha of black cockatoo habitat with similar or better quality than the black cockatoo habitat being impacted by the construction works (‘the specified black cockatoo habitat standard’).
In the alternative, the applicant argued that condition 7 required that the Minister or the Minister’s delegate be satisfied, on the basis of evidence presented by the Commissioner, that the offset properties met this same standard.
The applicant argued that its construction of condition 7 was to be preferred because it gave better effect to the object of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the protection of endangered species.
The applicant argued that the evidence presented to the Minister by the Commissioner did not demonstrate, as a matter of objective fact, that the proposed offset properties met the specified black cockatoo habitat standard.
Further, the applicant argued that the Minister or the Minister’s delegate had not formed the view that he or she was satisfied, on the basis of evidence presented by the Commissioner, that the offset properties met the specified black cockatoo habitat standard.
As such, the applicant argued that the Commissioner had failed to comply with condition 7.
The applicant sought as final relief declarations as to the proper construction of condition 7 of the approval and a prohibitory injunction restraining re-commencement of work on the Roe Highway extension until condition 7 of the approval was satisfied.
The Court applied the test summarised in Plaintiff M168/10 v Commonwealth in deciding whether to grant an interlocutory injunction, namely to determine whether there was (1) a serious question to be tried; and (2) the balance of convenience favoured granting the injunction.
The Court found that the applicant’s contention as to the construction of condition 7 did not have sufficient strength to be considered a serious question to be tried. Neither the language of condition 7, nor the underlying scheme of the conditions read as a whole supported the applicant’s preferred construction.
The language of condition 7 was clear and specific as to the types of evidence it required be provided to the Department. The language of the condition did not refer to any requirement of the nature alleged by the applicant.
Further, the scheme of the conditions as a whole left it open to the Minister to determine the content and timing of the process of assessing whether the acquired offset properties met the specified black cockatoo habitat standard.
The specificity of the language used in condition 7 and the scheme considered as a whole made it apparent that, had a requirement of the kind alleged by the applicant been intended by the draftsperson, the draftsperson would have specifically included it.
For this reason, it was considered that there was not a serious question to be tried.
Additionally, the fact that the approval contemplated that the process of acquisition and establishment of the offset properties would take place concurrently to the undertaking of the construction works substantially undermined the prospect of the applicant obtaining as final relief an injunction restraining further construction as opposed to a mandatory injunction compelling compliance with the alleged requirement.
The Court found that the balance of convenience also favoured the respondents. The grant of the interlocutory injunction would cause the Commissioner to incur substantial wasted costs and the applicant’s case was weak. Additionally, an alternative remedy to the restrictive injunction sought would have been available to the applicant at trial in the form of a mandatory injunction requiring compliance with the conditions of the approval.
Accordingly, the Court rejected the application for an interlocutory injunction.