- Depending on the project, preliminary or investigatory works can be excluded from a referral to the Minister for approval under the EPBC Act.
Deciding whether a project needs approval under the Commonwealth Environment Protection Biodiversity Protection Act 1999 (EPBC Act) will depend, to some extent, on how the project is described.
So what should you include, and what can you exclude, when referring your project proposal to the Minister to make this decision?
The Federal Court decision in Your Water Your Say v Minister for the Environment, Heritage and the Arts  FCA 670 suggests that preliminary or investigatory works can be excluded from a referral. However, proponents should not treat this as a green light to exclude works from a referral, because many of the Court's comments are case-specific.
In this article, we comment on the case and what the Court said, and compare it with an earlier decision on the EPBC Act, to work out what the case law so far is saying to proponents.
We also comment on what the Court said about dealing with the greenhouse impacts of a project.
The Federal Court decided that preliminary investigatory works for the proposed Victorian desalination plant raises a number of interesting issues. First, the distinction between preliminary works and matters referred under the EPBC Act is an important one as once a matter is referred no action can be undertaken in relation to the referred matters (section 74AA). Less attention was given by the Federal Court to the submission that there was a requirement to take into account linkages between greenhouse gas emission and potential adverse impacts on matters protected under the EPBC Act.
The desalination plant
Your Water Your Say is an action group formed primarily to oppose a reverse osmosis seawater desalination plant proposed by the Victorian government. The desalination project was referred to the Commonwealth Environment Minister for determination as to whether the project (or "action") was a "controlled action" (ie. whether it required approval) under the EPBC Act.
On 4 February 2008 the Minister (via his delegate) decided that the project was a controlled action because it triggered the approval requirement under several provisions (known as "controlling provisions") and determined that the project would be assessed by accredited assessment under Victorian legislation. The assessment process is at the public comment stage and so it is not yet in a position for the Minister to decide whether to grant approval.
Exclusion of preliminary works from the referral
This matter arrived before the Federal Court because Your Water Your Say challenged the decision by the Minister's delegate which noted that a number of preliminary works were excluded from the scope of the referral.
The preliminary works were listed as: geotechnical drilling and sampling to determine site conditions; installation of pipes into horizontal directional drill holes from onshore entry points; construction of offshore marine structures above the seabed for seawater intake and discharge; construction and temporary operation of seawater sampling units; installation and operation of one or more pre-treatment and/or desalination pilot plants; provision of power and water supply that is adequate for the construction and operation of the works.
The Your Water Your Say Action Group requested reasons for this decision. The delegate provided a written response on 6 March 2008. The response concluded that, in the view of the proponent, the preliminary works were unlikely to have any significant environmental effects on matters of national environmental significance. With regard to greenhouse gas emissions, the reasons stated that a possible link between the greenhouse gases arising from the proposed project and adverse impacts on matters protected by the EPBC Act was "uncertain and conjectural only".
Application to review Minister's decision
The Your Water Your Say Group argued that the Minister's decision about whether the project required approval (and which provisions triggered the requirement - ie. which were relevant "controlling provisions") was invalid on two bases:
- it wrongly excluded the preliminary works; and
- it failed to take into account linkages between greenhouse gas emissions and potential adverse impacts on matters protected by the EPBC Act.
The Group also argued that the preliminary works themselves required approval under the EPBC Act, and so they should be referred to the Minister.
The Group sought an injunction restraining the commencement of the preliminary works, making four main arguments:
- There was a "decision" by the Minister (via his delegate) to exclude preliminary works;
- The decision to exclude preliminary works was beyond the power of the Minister because the preliminary works were a "component" of the project and could not be carved out of the project. Carving the preliminary works out of the project created de facto development consent for the preliminary works;
- The preliminary works would, or would be likely to, have a significant impact on matters of national environmental significance;
- In making the decision under section 75 of the EPBC Act, the Minister failed to take into account linkages between greenhouse gas emissions and potential adverse impacts on matters protected by the EPBC Act.
In its referral documentation, the Victorian Government had described the preliminary works as "temporary" works to inform project design, location and environmental assessments. The referral stated that it was necessary for the preliminary works to commence prior to the completion of any environmental assessment process, and further information on the preliminary works could be provided upon request.
The Federal Court's decision
Justice Heerey dismissed the Group's application on all grounds. He held that the alleged decision by the Minister's delegate to exclude preliminary works was in fact not a decision at all. The preliminary works were expressly excluded from the referral to the Minister and therefore did not form part of the "action" which was referred to the Minister. The section 75 decision of 4 February 2008 expressly stated that the preliminary works did not require approval because they were not part of the referral.
Justice Heerey also found that the Group failed to provide relevant or admissible evidence to show the preliminary works would cause environmental damage. It sought to tender two reports to support this ground, but their author did not swear an affidavit so the reports were regarded as hearsay. Even if they had been admissible, they were not relevant to the present issues.
As for the question of greenhouse gas emissions, Justice Heerey considered this was not a matter which the delegate was bound by law to consider, but in any event, the delegate had considered the issue.
At first glance this decision by Justice Heerey might seem at odds with the 2003 decision in Mees v Roads Corporation (2003) 128 FCR 418, in which the Federal Court found that the Victorian Roads Corporation had failed to refer a possible freeway link when it referred the Scoresby road project. (Although the link was described as "possible", the Court found that there was a "strong chance" the link would be built). Unfortunately, the reasons for judgment in the Your Water Your Say case do not refer to the Mees case.
The difference between the two cases is that in Your Water Your Say the proponent did not exclude from the referral works which formed part of the proposed action; rather the proponent sought to exclude preparatory works which (according to the Victorian Government) were necessary to enable the environmental assessments for the proposed action to be carried out.
Given the Victorian Government's view of the preliminary works, it would seem logical not to include the preliminary works in the same referral as the desalination project, because they necessarily precede the desalination project (so that a proper design and assessment of the project can be carried out). Of course, if the preliminary works themselves triggered an approval requirement in the EPBC Act, then a separate referral would be required for them.
Think carefully about what you do and don't include in your referral
Proponents should consider carefully the scope of their proposed action to avoid unnecessarily including activities which are not part of the relevant action (eg. site surveys or preliminary sampling), but also to avoid leaving out activities which actually form part of the relevant action. Proponents need to properly describe the referred activity and excluded preliminary works.
The decision in Your Water Your Say should not been seen as a green light to categorise works likely to have a significant impact as 'preliminary works'. It is also important to bear in mind that third parties may have standing to seek injunctive relief in instances where they submit that the preliminary works will breach a Part 3 provision of the EPBC Act and that the Minister has the authority to decide not to accept referrals which are a component of a larger action and to request referral of the larger action. Finally the proponents undertaking controlled actions under the guise of "preliminary works" risk enforcement action under the Act.
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.