WA proponents still must carefully and thoroughly prepare their assessment documents, and ensure an adequate lead-time for the assessment process.

The dramatic decision by the West Australian Supreme Court in December 2015 that the WA EPA was legally obliged (and failed) to take into account specific offsets policies in assessing the Roe 8 Highway Extension ‒ and that consequently the Environment Minister's approval of the proposal was invalid ‒ has been overturned. On 15 July 2016 the WA Court of Appeal unanimously and decisively rejected the Supreme Court's reasoning, and thereby reinstated the Minister's approval.

This means the Government can award contracts to begin constructing the highway extension before the upcoming March 2017 State election.

A controversial project

Despite being generally identified in plans for decades, the Roe 8 project, an extension of a major freight link (the Roe Highway) of approximately 5 km from the Kwinana Freeway to Stock Road, has been highly controversial because of the project's impact on a conservation significant wetland and residential neighbourhoods.

The EPA had earlier given advice to the Environment Minister questioning whether any extension could be environmentally acceptable. However, in 2013 the EPA recommended that the Environment Minister approve the project subject to the provision of environmental offsets. The project was approved.

Round one

The conservation group, Save Beeliar Wetlands Inc, successfully challenged the EPA's assessment with the Chief Justice Wayne Martin finding that the EPA was legally obliged (and failed) to take into account specific offsets policies.

This decision was a fundamental reinterpretation of the Environmental Protection Act 1986, with the potential to undermine a range of previous assessments on technical procedural grounds. It also had potential wider application to statutory assessments by various Government boards and tribunals. Amongst other things, it triggered an independent review of the EPA and its policy framework.

Round two

On 15 July 2016, the Court of Appeal unanimously overturned the decision of the Chief Justice, concluding that there was no legal obligation on the EPA to consider the offsets policies.

The Court, led by soon departing President, Justice McLure, reasoned that it could not be implied from the express provisions of the EP Act that the Policies were "mandatory" relevant considerations, rather they were "permissive" relevant considerations.

The Respondent, Save Beeliar Wetlands, sought to uphold the decision of the Chief Justice alternatively on grounds that the EPA's assessment process was unreasonable. Specifically that the policies had not been considered at all and the proposal was so environmentally unacceptable that no environmental offset could be recommended. These arguments turned on a technical interpretation of the policies and the presumption against approving impacts to critical environmental assets.

The Court rejected each of these arguments. The Court held that not only were the policies not mandatory considerations, there was evidence that the policies were considered in the wider assessment process and that the presumption was not absolute (and permitted the use of environmental offsets). Ultimately, the Court reasoned that the EPA did not fall into error when it assessed the significant residual adverse impacts of the project on critical assets (and recommended approval subject to the provision of environmental offsets).

Round three?

The conservation group has foreshadowed a possible High Court challenge. We wait to see if the High Court will grant leave.

In the meanwhile, despite the Court of Appeal decision, it is likely the EPA's policy review will continue and a completely new policy framework will be enacted. Even without the new policies being available, the independent review, and a fine-tooth comb approach to existing policies, has had a dramatic effect in slowing down assessments that are currently before the EPA.

Implications for you

The Court of Appeal's decision does not negate the need to consider Government policies when applying for environmental approval in WA. Policies remain relevant, and often involve complex questions relating to interpretation and application (including just how relevant they are to the proposal being assessed).

This means that proponents still must carefully and thoroughly prepare their assessment documents. They also need to ensure an adequate lead-time for the assessment process. Our Planning and Environment team can assist with any questions on the EPA's environmental impact assessment policies and the assessment process.