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
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
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.
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
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
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
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
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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