Australia: Save Beeliar Wetlands (Inc.) v Commissioner of Main Roads [2017] FCA 4 - 23 January 2017

Last Updated: 31 January 2017
Article by Sarah Macoun

Overview and take-home points

In the recent decision of Save Beeliar Wetlands (Inc.) v Commissioner of Main Roads [2017] 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.

Facts

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 ss130(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:1

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.

Applicant's arguments

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.

Decision

The Court applied the test summarised in Plaintiff M168/10 v Commonwealth2 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.

Footnotes

1 Emphasis omitted.

2 (2011) 279 ALR 1 [15], [19].

For more information or discussion, please contact HopgoodGanim Lawyers' Planning and Environment team.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Sarah Macoun
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.