Save the Ridge Inc v Commonwealth [2005] FCAFC 203 (16 September 2005)

Last Updated: 16 September 2005

FEDERAL COURT OF AUSTRALIA

Save the Ridge Inc v Commonwealth [2005] FCAFC 203

ENVIRONMENT – policy for the planning of national and arterial roads systems – National Capital Plan – National Capital Planning Authority – Commonwealth action – whether action by authority prohibited under Environment Protection and Biodiversity Conservation Act 1999 (Cth) – whether action includes making of amendments to plan – whether action will have an actual or likely impact on environment – no finding of facts by primary judge – whether action is a governmental authorisation and excluded from definition of action under the Act

PRACTICE AND PROCEDURE – Federal Court Rules O 29 r 2 – formulation of separate or preliminary questions – difficulties associated with procedure

WORDS AND PHRASES – 'action'


Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 7, 28(1), 523, 524(2), 528
Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) s 10, 11, 12, 14, 15, 19, 21, 22
Federal Court Rules O 29 r 2


Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 referred to
Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002 referred to
Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002 referred to
Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; (2001) 109 FCR 488 referred to
Margarula v Minister for Environment [1999] FCA 730; (1999) 92 FCR 35 cited
Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190; (2004) 139 FCR 24 referred to
Rainsford v State of Victoria [2005] FCAFC 163 referred to
Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 cited
SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 referred to
Soufflet Beheer v AWB Limited [2004] FCA 518 referred to



SAVE THE RIDGE INC v COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN CAPITAL TERRITORY
ACD 7 OF 2005

BLACK CJ, MOORE AND EMMETT JJ
SYDNEY (HEARD IN CANBERRA)
16 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 7 OF 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SAVE THE RIDGE INC (ASSOCIATION NO A03329) APPELLANT
AND:	COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT AUSTRALIAN CAPITAL TERRITORY SECOND RESPONDENT
JUDGES:	BLACK CJ, MOORE AND EMMETT JJ
DATE OF ORDER:	16 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed in part.
2. The answer to the first preliminary question given by the primary Judge in proceedings ACD 16 of 2004 be set aside and the following answer be substituted:
(a) Question: Do the activities identified in the particulars set out in paragraph 3 of the grounds of the amended application constitute, individually or collectively, "action" for the purposes of the Environment Protection and Biodiversity Conservation Act 1999?

Answer: Inappropriate to answer.

3. The appeal otherwise be dismissed.
4. Any submissions on costs of the appeal be filed within fourteen days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 7 OF 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SAVE THE RIDGE INC (ASSOCIATION NO A03329) APPELLANT
AND:	COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT AUSTRALIAN CAPITAL TERRITORY SECOND RESPONDENT

JUDGES:	BLACK CJ, MOORE AND EMMETT JJ
DATE:	16 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BLACK CJ AND MOORE J

1 We have had the benefit of reading the judgment of Emmett J in a draft form. It is unnecessary to repeat all of the background to this appeal or to set out the legislative framework in full. The appellant commenced proceedings in this Court, claiming that certain activities of the National Capital Authority ("the Authority"), an authority created under the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ("the PLM Act"), were prohibited under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the EPBC Act"). In its amended application, the appellant also claimed, specifically, that the making of amendments 41 and 46 to the National Capital Plan ("the plan") was prohibited under s 28 of the EPBC Act. It was contended the Authority had neither sought nor obtained approval under s 28(2)(a) or a decision under s 28(2)(d) of the EPBC Act.

2 On 20 January 2005, the learned primary judge determined, in effect, that the impugned conduct was not prohibited by the EPBC Act: Save the Ridge Inc v Commonwealth of Australia [2005] FCA 17. His Honour determined this issue by answering two preliminary questions. The appellant submits the answers are wrong. The questions and his Honour's answers were:

The separate questions be answered as follows:

(a) Question: Do the activities identified in the particulars set out in paragraph 3 of the grounds of the amended application constitute, individually or collectively, "action" for the purposes of the Environment Protection and Biodiversity Conservation Act 1999?

Answer: No.

(b) Question: Do any of the activities identified in paragraph 7 of those grounds, namely:

(i) the making of amendment 41 to the National Capital Plan;
(ii) the making of amendment 46 to the National Capital Plan;
(iii) the granting of works approvals on 6 February 2004, 18 February 2004, 24 February 2004, 17 March 2004 and 18 March 2004;

constitute an "action" for the purposes of the said Act?

Answer: No.

3 Paragraph 3 mentioned in the first question, identified the following activities:

(a) The activities undertaken by the NCA during 2001 and 2002 and set out in the document titled Gungahlin Drive Assessment Information Kit, dated December 2002, and forming annexure B to the second affidavit of Julie Murphy herein.
(b) In early 2003, the NCA submitted Amendment 41 to the National Capital Plan and a report on its consultations in relation thereto to the Minister pursuant to s 18 of the Australian Capital Territory (Planning and Land Management) Act 1988.
(c) In late 2002 and early 2003, the NCA prepared Draft Amendment ("DA") 46 to the National Capital Plan, in accordance with the Authority's decision taken on 22 December 2002, particulars of which are provided in the Information Kit referred to in (a) above.
(d) On 15 February 2003, the NCA placed DA 46 on public exhibition pursuant to s 15 of the Australian Capital Territory (Planning and Land Management) Act 1988, and on or after that date carried out the other activities prescribed by that section.
(e) In July 2003, the NCA submitted Amendment 46 and a report on its consultations in relation thereto to the Minister pursuant to s 18 of the Australian Capital Territory (Planning and Land Management) Act 1988.

Paragraph 7 mentioned in the second question, identified the following activities:

(a) Amendment 41 to the National Capital Plan drafted by the NCA and gazetted on 4 March 2003 ('Amendment 41').
(b) Amendment 46 to the National Capital Plan drafted by the NCA and gazetted on 20 August 2003 ('Amendment 46')
(c) A series of works approvals purportedly granted by the NCA pursuant to section 12(1) of the Australian Capital Territory (Planning and Land Management) Act 1988 [various and dated in 2004].

4 Section 4 of the PLM Act established the Authority. The functions of the Authority are set out at s 6 of the PLM Act which provides:

The functions of the Authority are:
(a) to prepare and administer a National Capital Plan;
(b) to keep the Plan under constant review and to propose amendments to it when necessary;
(c) ...

The Minister may give the Authority general directions concerning the performance of its functions (s 7).

5 Section 10 of the PLM Act sets out what features must or may be included in the plan and, relevantly, s 10(2)(b) requires the Authority to set out the general policy for the planning of national and arterial road systems. Section 11 prohibits the Commonwealth, a Commonwealth authority, the Territory or a Territory authority from doing any act that is inconsistent with the plan. Section 11(2) provides:

The Commonwealth, a Commonwealth authority, the Territory or a Territory authority shall not do any act that is inconsistent with the [National Capital] Plan.

For the plan to be approved and take effect, the PLM Act requires the plan be submitted by the Authority to the Commonwealth Minister for Territories ("the Minister") who will either approve the plan or refer it to the Authority with directions to conduct further consultations or suggest alterations (s 19). If the Minister approves the plan, the Minister is to publish a notice of approval in the Commonwealth Gazette (s 21). The plan is then laid before each House of Parliament and subject to disallowance within six sitting days of the House by motion on notice (s 22). Amendments to the plan are to be prepared in the same way as the plan (s 23 of the PLM Act).

6 The plan took effect on 21 December 1990. The plan included policies for the planning of national and arterial road systems throughout the ACT and proposed an arterial road known as the Gungahlin Drive Extension ("the Road"). However the plan did not determine the final alignment of the Road and it was identified as a proposed road only. It was common ground in this appeal that the effect of the plan in this form was that the Road could not lawfully be built without the plan being amended.

7 On 22 December 2002, the Authority resolved to refer an amendment to the plan to the Minister for approval. The amendment was amendment 41. That amendment altered the status of the Road from that of proposed road and settled its alignment. On 24 January 2003 the ACT Planning and Land Management ("PALM") advised the Authority it had no objection to amendment 41. On 13 February 2003 the Authority submitted amendment 41 to the Minister, together with a report on the Authority's consultations. On 3 March 2003, the Minister approved amendment 41, and the approval was notified in the Commonwealth Gazette on 4 March 2003. Amendment 41 was laid before each House of Parliament, and a motion to disallow it was rejected by the Senate on 19 August 2003.

8 On 22 December 2002, the Authority resolved to prepare an amendment to the plan to redefine the western boundary of the Black Mountain Nature Reserve to facilitate the building of the Road. This proposed amendment became amendment 46. The proposed amendment was published for public consultation on 15 February 2003 and the Authority sought comments from PALM, which responded on 7 March 2003. On 2 August 2003 the Authority submitted amendment 46 to the Minister for approval and the Minister approved amendment 46 on 20 August 2003. The approval was notified in the Commonwealth Gazette on 27 August 2003 and amendment 46 was laid before both Houses of Parliament, and a motion in the Senate to disallow it was not passed.

9 Section 28 of the EPBC Act provides:

(1) The Commonwealth or a Commonwealth agency must not take inside or outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction.

Civil penalty:

(a) for a Commonwealth agency that is an individual--1,000 penalty units;
(b) for a Commonwealth agency that is a body corporate--10,000 penalty units.

(2) Subsection (1) does not apply to an action if:

(a) an approval of the taking of the action by the Commonwealth or Commonwealth agency is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the Commonwealth or Commonwealth agency take the action without an approval under Part 9 for the purposes of this section; or
(c) the action is one declared by the Minister in writing to be an action to which this section does not apply; or
(d) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(e) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

(3) The Minister may make a written declaration that actions are actions to which this section does not apply, but only if he or she is satisfied that it is necessary in the interests of:
(a) Australia's defence or security; or
(b) preventing, mitigating or dealing with a national emergency.

(4) The Minister may make a written declaration that all actions, or a specified class of actions, taken by a specified Commonwealth agency are actions to which this section does not apply.

(5) The Minister may make a declaration under subsection (4) relating to a Commonwealth agency's actions only if he or she is satisfied that, in taking the actions to which the declaration relates, the agency must comply with the law of a State or Territory dealing with environmental protection.
(Emphasis added)

10 Section 523 defines "action":

(1) Subject to this Subdivision, action includes:

(a) a project; and
(b) a development; and
(c) an undertaking; and
(d) an activity or series of activities; and
(e) an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).

(Emphasis original)

And s 524 provides what is not an action:

(1) This section applies to a decision by each of the following kinds of person (government body):

(a) the Commonwealth;
(b) a Commonwealth agency;
(c) a State;
(d) a self-governing Territory;
(e) an agency of a State or self-governing Territory;
(f) an authority established by a law applying in a Territory that is not a self-governing Territory.
(2) A decision by a government body to grant a governmental authorisation (however described) for another person to take an action is not an action.
(3) To avoid doubt, a decision by the Commonwealth or a Commonwealth agency to grant a governmental authorisation under one of the following Acts is not an action:
(a) the Customs Act 1901;
(b) the Export Control Act 1982;
(c) the Export Finance and Insurance Corporation Act 1991;
(d) the Fisheries Management Act 1991;
(e) the Foreign Acquisitions and Takeovers Act 1975;
(f) the Petroleum (Submerged Lands) Act 1967;
(g) the Quarantine Act 1908;
(h) the Trade Practices Act 1974.

This subsection does not limit this section.

(Emphasis original)

11 It was accepted in these proceedings that the Authority was the Commonwealth and the Minister was a Commonwealth agency: see s 528 of the EPBC Act which provides that a Commonwealth agency means, amongst other things, a Minister.

12 The reasoning of the learned primary judge, when answering the first question in the negative, is found in the following passage from his Honour's reasons (at [12]):

Counsel for the applicant submits that, in proposing amendments to the National Capital Plan, the National Capital Authority is taking 'an action' that may be covered by s 28(1) of the EPBC Act. He relies on dictionary definitions to submit that the meaning of that noun is not `confined to physical activities like construction works.´ That may be so, but his submission must be rejected. The PLM Act makes it clear that a draft amendment has no effect whatsoever. The mere submission of such a draft to the Minister is, by itself, incapable of having any `impact on the environment´. This conclusion disposes of the first question for decision.

13 As to the second question, his Honour said (at [14] and [15]):

Plainly neither Amendment 41 nor Amendment 46 authorised, in terms, the `construction and operation of the GDE´. Their precise effect is described at [5]-[6] above. The National Capital Plan expressly states that the policies identifying permitted uses do not confer any rights to use land for any purpose. Section 11(2) of the PLM Act does not operate to authorise any particular act, such as the construction of a road. I accept that the planning for the GDE is affected by Amendment 41 and Amendment 46. Nonetheless, in publishing a notice of approval required by s 21 of the PLM Act, the Minister administering that Act does not, in my opinion, `take ... an action´ for the purposes of s 28(1) of the EPBC Act.
The scheme of the EPBC Act has been recently explained by the Full Court in Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190. Part 7 of the EPBC Act deals with how the Environment Minister decides whether approval is needed for the taking of an action for the purposes of s 28. It is posited upon the existence of `a proposal to take an action´. The Full Court emphasized (at [57]) the importance of the Minister considering `each consequence which can reasonably be imputed as within the contemplation of the proponent of the action´. In the present case I cannot conceive how inserting a firm black line on Figure 1 to denote an arterial road or redefining on Figure 24 by a heavy black line the boundary of a Designated Area could possibly be a proposal for action susceptible to consideration under Pt 7 of the EPBC Act.

14 One other issue determined by the primary judge is raised in this appeal by a notice of contention. It concerns the operation of s 524 of the EPBC Act. His Honour said (at [18]):

Counsel for the respondents also contend that each of Amendment 41 and Amendment 46 is a decision ‘to grant a governmental authorisation (however described) for another person to take an action’ and thus not an ‘action’ by virtue of s 524(2) of the EPBC Act. I reject this contention because neither amendment purports to grant authorisation for ‘another person’, that is, a person other than the grantor, to do anything. Counsel for the first respondent relied on the meaning attributed to the phrase ‘specifically authorised’ in s 43A(1)(b) of the EPBC Act by Sackville J in Minister for the Environment and Heritage v Greentree (No 2) [2004] FCA 741 at [153]. However, his Honour’s view of the scope of that quite different phrase depended on the effect of s 76 of the Environmental Planning and Assessment Act 1979 (NSW). There is no equivalent provision in the PLM Act.

For reasons which it is unnecessary to detail, the appellant has not pursued an argument, raised in the application, that approval by the Authority for certain works was prohibited by the EPBC Act.

15 Before considering whether the learned primary judge erred in answering the questions as he did, it is desirable to say something about the procedure itself. The formulation of separate or preliminary questions is authorised by O 29 r 2 of the Federal Court Rules. But it is a procedure that should be adopted with caution and can be fraught with difficulties. Principles guiding the adoption of the procedure have been recently discussed by a Full Court in Rainsford v State of Victoria [2005] FCAFC 163, by Sackville J in Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002 and by Kenny J in Soufflet Beheer v AWB Limited [2004] FCA 518, in which her Honour draws on the judgment of Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; see also Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; (2001) 109 FCR 488 at [131]- [141] and SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 at [35]- [41]. The present case illustrates some of the difficulties.

16 The questions were framed in the terms set out above because they generally reflect the way in which the appellant's amended application was expressed. The application alleged that the Authority has "taken within Australia activities causing the planning, construction and operation" of the Road. The activities as particularised were set out earlier in this judgment (at [4]). The application then particularised the way in which the Road will or is likely to have a significant impact on the environment of the Australian Capital Territory. The application then provided:

The NCA has neither sought nor obtained approval under section 28(2)(a) or a decision under section 28(2)(d) of the Environment Protection and Biodiversity Conservation Act 1999 in respect of its actions related to the GDE.
As a result of the foregoing, the actions and activities of the NCA in relation to the GDE are prohibited by section 28(1) of the Environment Protection and Biodiversity Conservation Act 1999.
In particular, the following are prohibited by, and thus invalid, pursuant to section 28(1):

(a) Amendment 41 to the National Capital Plan drafted by the NCA and gazetted on 4 March 2003 ('Amendment 41').
(b) Amendment 46 to the National Capital Plan drafted by the NCA and gazetted on 20 August 2003 ('Amendment 46')

It can be seen that the application challenged the lawfulness of the work of the Authority in preparing draft amendments to the plan as well as the amendments of the plan.

17 These are the parameters of the case advanced by the appellant and they informed the formulation of the questions. However, the first question is, in our opinion, inappropriate to answer. We say that for three reasons, which are related. The first is that no facts have been found about the actual or likely impact of the Road on the environment. It seems to us that whether conduct constitutes action for the purposes of s 28 may well depend on the consequences, including indirect or remote consequences, of the action in terms of its impact on the environment. That should not be a matter of speculation or assumption: see Direct Factory Outlets (supra) and Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190; (2004) 139 FCR 24 at [53]. It is a question of fact. As the assumed facts before the Court by reference to which this preliminary question must be answered are incomplete the question is inappropriate to answer: Direct Factory Outlets (supra) at [36]-[37]; Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at [49]- [54]. The second is that it cannot be assumed that the actions of a planning authority could never be action for the purposes of s 28. It would depend on what the authority did and its consequences, either direct or indirect. But to isolate, in a question, steps taken by a planning authority without articulating the context in which those steps were taken, is apt to provide an answer devoid of content or misleading or both. The third is that the first question does not raise the real issue dispositive of the application, namely whether the drafting of the amendments and their approval constitutes a decision comprehended by s 524(2).

18 But for the amendments, s 11 of the PLM Act prohibited the Territory from constructing the Road. That was because, without the amendments, the Road's construction was inconsistent with the plan. The making of the amendments, by Ministerial approval and gazettal, removed a legislative constraint on the construction of the Road. It is common ground that the Territory wanted to construct the Road and it is not straining language to say that it needed authorisation to do so. With the benefit of full argument, we accept that the making of the amendments can and should be characterised as "decision(s) of a Commonwealth agency [the Minister] to grant a governmental authorisation to the Territory" to construct the Road.

19 The apparent purpose of s 524 is to take the process of authorisation by governments or government agencies outside the purview of the EPBC Act by excluding certain decisions by those bodies from the concept of relevant "action". The categories of decision identified in s 524 as deserving of specific mention to "avoid doubt" show that authorisations of many different types are contemplated as being potentially within the exclusionary ambit of s 524. The same conclusion is suggested by the circumstance that the section refers to authorisation "however described", thus directing attention to the real substance and effect of a decision and also by the circumstance that the provision does not refer to an authorisation "to" another person but "for" another person to take an action.

20 It may well be that the section was drawn on the assumption that, as here, there will be some process of consideration and deliberation before an authorisation is granted and that this will involve consideration of the consequences of authorising what might otherwise be an "action". More fundamentally, though, the section may be seen as reflecting a policy of removing from the reach of the EPBC Act certain decisions of governments, including State and territory governments, made pursuant to statutory authority. Without such a provision the administration of planning laws, and laws in many other fields as well, could become subject to the EPBC. Views will no doubt differ as to whether this would be a good or a bad thing but s 524 would appear to reflect a clear policy choice by the Parliament to restrict the operation of the section.

21 Section 524(2) concerns "a decision" to grant a governmental authorisation. What conduct is comprehended by the word "decision" is ultimately a matter of construction: as to its meaning in the Administrative Decisions (Judicial Review) Act 1977 (Cth) see, for example, the discussion of Sundberg J in Margarula v Minister for Environment [1999] FCA 730; (1999) 92 FCR 35 at 43. Since s 524(2) is intended to exclude from the purview of the EPBC Act conduct which constitutes a formal and operative decision it is almost inevitable that it was also intended to exclude decisions made in the deliberative processes directly connected to the making of that decision. It would be quite inconsistent with the object of the provision, if the decisions and related deliberative processes that might be made or undertaken in the course of those processes were intended to be subject to the EPBC, by being "actions" outside the scope of s 524, where the substantive decision itself was within the scope of the section. The principal object of s 524(2) being to exclude the final or operative decision, that object would be frustrated if the decisions made along the way were not also excluded. Accordingly, the decisions and related steps taken to propose the amendments were comprehended by s 524(2) even though they were taken by different manifestations of the Commonwealth (the Authority in formulating and proposing the amendments and the Minister in formally approving them).

22 The appeal should therefore be allowed in part and the questions answered, as to (a): "Inappropriate to answer" and, as to (b): "No". The appellant submitted in its written submissions in reply it should not be ordered to pay the respondents' costs of the appeal in the event that the appeal was not successful. There is substance in that submission: see Ruddock v Vardalis (2002) 114 FCR 229 and Kirby J in South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 72 ALJR 1008. However the respondents have not specifically responded to that submission. Accordingly they should be given fourteen days in which to do so if they propose an order other than an order that there be no order as to costs of the appeal.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justice Moore.

Associate:

Dated: 15 September 2005

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD7 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SAVE THE RIDGE INC. (ASSOCIATION NO. A03329) APPELLANT
AND:	COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT AUSTRALIAN CAPITAL TERRITORY SECOND RESPONDENT

JUDGES:	BLACK CJ, MOORE & EMMETT JJ
DATE:	16 SEPTEMBER 2005
PLACE:	CANBERRA

REASONS FOR JUDGMENT

EMMETT J:

23 The appellant, Save the Ridge Inc, claims that the planning and construction of the Gungahlin Drive Extension freeway from the Barton Highway to Glenloch Interchange in the Australian Capital Territory (‘the Territory’) and associated roadwork (‘the Extension’) has been carried out unlawfully. The appellant says that there has been a contravention of s 28(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘the Environment Protection Act’), which prohibits the Commonwealth, or a Commonwealth agency, from taking an action that has, will have or is likely to have a significant impact on the environment. The appellant says that the steps taken by the National Capital Planning Authority (‘the Authority’) to amend the National Capital Plan under the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (‘the Planning Act’) constituted action that is likely to have a significant effect on the environment.

24 A judge of the Court ordered, pursuant to Order 29 of the Federal Court Rules, that certain questions, which were thought to be raised in the proceeding, be determined separately from, and prior to, all other questions in the proceeding. On 20 January 2005, those questions were determined unfavourably to the appellant. In the light of the answers to the questions given by the primary judge, the proceeding could not succeed. The primary judge therefore ordered that the proceeding be dismissed with costs. The appellant now appeals from those orders to the Full Court.

25 The issue raised in the appeal depends upon the interaction of the Environment Protection Act with the Planning Act. It is therefore desirable to say something about the schemes of the Environment Protection Act and the Planning Act, in order to explain how that interaction gives rise to the issue raised in the appeal.

THE PLANNING ACT

26 The Authority is established by s 5 of the Planning Act. Under s 6, the functions of the Authority include the preparation and administration of a National Capital Plan, keeping the National Capital Plan under constant review and proposing amendments to the National Capital Plan when necessary. The Authority is a Commonwealth agency for the purposes of the Environment Protection Act.

27 Under s 11(1) of the Planning Act, a law of the Territory that is inconsistent with the National Capital Plan has no effect to the extent of the inconsistency. Under s 11(2), the Commonwealth, a Commonwealth authority, the Territory or a Territory authority must not do any act that is inconsistent with the National Capital Plan. Section 10(1) of the Planning Act provides that the National Capital Plan may specify areas of land to be ‘Designated Areas’. Under s 12(1) no works are to be performed in a Designated Area unless the Authority has approved the works in writing and the works are in accordance with the National Capital Plan.

28 Division 2 of Part III of the Planning Act deals with the preparation of the National Capital Plan and amendments to the National Capital Plan. Under ss 14 and 15, provision is made for the preparation of a draft plan by the Authority, the submission of the draft to the Territory Planning Authority and making the draft plan available for inspection. Under s 16(2), the Minister administering the Planning Act (‘the Planning Minister’) may declare that the draft plan is certified. Under s 17, so long as the draft plan is certified, s 11 applies as if the National Capital Plan is in effect.

29 Under s 18 of the Planning Act, the Authority must submit the draft plan to the Planning Minister for approval and, under s 19(1), the Planning Minister must either approve the draft plan or refer it to the Authority for further consultations or for the making of alterations. Under s 21, where the Planning Minister approves the draft plan, notice of the approval must be published in the Commonwealth Gazette. The National Capital Plan takes effect on the publication of the notice of approval.

30 Section 23 of the Planning Act provides that amendments of the National Capital Plan are to be prepared in the same way as the National Capital Plan itself. Under s 23, ss 14 to 21 inclusive apply to amendments as if references in those sections to the National Capital Plan were references to the amendments.

THE ENVIRONMENT PROTECTION ACT

31 Part 3 of the Environment Protection Act, in which s 28 is contained, is concerned with requirements for environmental approvals in relation to proposed actions. It contains controlling provisions, as that term is explained in s 67 of the Environment Protection Act. Section 67 provides that a proposed action is a ‘controlled action’ if the taking of the action by a person, without approval under Part 9 for the purposes of a provision of Part 3, would be prohibited by that provision. Such a provision is a ‘controlling provision’ in respect of that action.

32 Division 1 of Part 3 is concerned with requirements relating to matters of national environmental significance and contains subdivisions dealing with the following matters:

A - World Heritage
AA - National Heritage
B - Wetlands of International Importance
C - Listed Threatened Species and Communities
D - Listed Migratory Species
E - Protection of the Environment from Nuclear Actions
F - Marine Environment
G - Additional Matters of National Environmental Significance

33 Division 2 of Part 3 is concerned with protection of the environment from proposals involving the Commonwealth. It contains subdivisions dealing with the following:

A - Protection of Environment from Actions Involving Commonwealth Land

AA - Protection of Commonwealth Heritage Places Outside Australia

B - Protection of the Environment from Commonwealth Actions
Section 28 is contained in Subdivision B.

34 Each of the subdivisions in Divisions 1 and 2 contain prohibitions of various sorts. Each prohibition is expressed in terms of taking an ‘action’.

35 In Subdivision A of Division 1, the prohibition relates to action by any person, if specified consequences will or may flow from that action. In Subdivision AA, the prohibition relates to action by a corporation to which s 51(xx) of the Constitution applies, the Commonwealth, a Commonwealth agency or other persons defined by reference to the legislative power of the Commonwealth under the Constitution. Subdivisions B, C, D, E, F and G contain prohibitions expressed in similar terms to Subdivisions A and AA.

36 Subdivision A of Division 2 contains prohibitions on actions by any person either on Commonwealth land or in relation to Commonwealth land. Subdivision AA contains a prohibition on actions with respect to a Commonwealth heritage place, which is defined in s 341C as a place included in the Commonwealth Heritage List. The Environment Minister may only include a place in the Commonwealth Heritage List if the place is in a Commonwealth area, or is owned, or leased by, the Commonwealth or a Commonwealth agency outside Australia.

37 Section 28(1) of the Environment Protection Act provides that the Commonwealth or a Commonwealth agency must not ‘take an action that has, will have or is likely to have a significant impact on the environment’. However, under s 28(2), s 28(1) does not apply to an action, if:

(a)	an approval, for the purposes of s 28, of the taking of the action is in operation under Part 9 of the Environment Protection Act;
(b)	part 4 of the Environment Protection Act (which specifies cases in which environment approvals are not needed) lets the action be taken without an approval under Part 9;
(c)	the action is one declared by the Minister administering the Environment Protection Act (‘the Environment Minister’) to be one to which s 28 does not apply;
(d)	there is in force a decision of the Environment Minister under Division 2 of Part 7 of the Environment Protection Act that s 28 is not a controlling provision for the action;
(e)	the action is described in s 160(2) of the Environment Act (which describes actions the authorisation for which is subject to a special environmental assessment process).

38 Neither the Commonwealth nor the Territory contends that s 28(2) applies in the present circumstances. However, the provisions of s 28(2) have a bearing on the meaning to be given to the expression ‘an action that has, will have or is likely to have a significant impact on the environment’ in s 28(1). Specifically, s 28(2) may throw light on the meaning of the words ‘action’ and ‘impact’ in s 28(1).

39 Chapter 8 of the Environment Protection Act contains definitions. Under s 523 the term ‘action’ includes:

(a) a project;
(b) a development;
(c) an undertaking;
(d) an activity or series of activities; and
(e) an alteration of any of the things mentioned in (a), (b), (c) or (d).

Under s 524(2), a decision by, inter alia, the Commonwealth or a Commonwealth agency, to grant a governmental authorisation for another person to take an action, is not an action for the purposes of the Environment Protection Act. Under s 524A, provision of funding by way of a grant by, inter alia, the Commonwealth or a Commonwealth agency, is not an action.

40 There is no definition of impact in the Environment Protection Act. However, under s 528, the term environment is defined as including:

• ecosystems and their constituent parts, including people and communities;
• natural and physical resources;
• the qualities and characteristics of locations, places and areas;
• heritage values of places;
• the social, economic and cultural aspects of a thing mentioned above.

41 Part 4 of the Environment Protection Act deals with action in respect of which environmental approvals are not needed. Part 4 deals with the following cases:

• Division 1 – actions covered by agreements between the Commonwealth and a State or a self-governing Territory, as described in s 45(2);
• Division 2 – actions covered by declarations made by the Environment Minister that such actions do not require approval under Part 9;
• Division 4 – forestry operations undertaken in accordance with a regional forest agreement as defined in the Regional Forest Agreements Act 2002 (Cth);
• Division 5 – actions in the Great Barrier Reef Marine Park established by the Great Barrier Reef Marine Park Act 1975 (Cth);
• Division 6 – actions consisting of a use of land, sea or seabed specifically authorised under the law of the Commonwealth, a State or a self-governing Territory before the commencement of the Environment Protection Act.

42 Section 32, which is within Division 2 of Part 4, provides that a person may take an action described in a provision of Part 3 without an approval under Part 9 if, relevantly:

• the action is one of a class of actions declared by the Minister under s 33 not to require approval because the action is approved in accordance with an accredited management plan;
• the accredited management plan is in force under a law of the Commonwealth;
• the action is taken in accordance with the accredited management plan.

Section 33(1) authorises the Environment Minister to declare that actions in a class of actions, specified by reference to the fact that their taking has been approved in accordance with a management plan that is an accredited management plan, do not require approval.

43 Chapter 4 of the Environment Protection Act deals with assessment and approval of controlled actions, namely, actions that Part 3 prohibits without approval. Part 7, which is in Chapter 4, provides for referral by various persons and polities to the Environment Minister for a decision whether or not a proposed action is a controlled action. Under s 75, which is within Part 7, provision is made for the Environment Minister to decide whether or not the proposed action is a controlled action and which provisions of Part 3, if any, are controlling provisions for that action. Under s 77, the Environment Minister must, after deciding whether a proposed action is a controlled action or not, give written notice of the decision and publish notice of the decision in accordance with the Regulations. If the decision is that the proposed action is a controlled action, the notice must identify each of the controlling provisions for that action.

44 Part 8, which is also in Chapter 4, provides for the assessment of impacts of controlled actions in order to provide information for decisions whether or not to approve the taking of the actions. For actions that are to be assessed under Part 8, the Environment Minister must choose one of several methods of assessment described in Part 8. Under s 81, Part 8 applies to the assessment of the relevant impacts of an action that the Environment Minister has decided under Part 7 is a controlled action.

45 Under s 82(1), which is in Part 8, if the Minister has decided under Part 7 that an action is a controlled action, the relevant impacts of the action are the impacts that the action has, or will have, or is likely to have, on the matter protected by each provision of Part 3 that the Minister has decided under Part 7 is a controlling provision for that action. Division 3 of Part 8 provides that the Environment Minister must choose one of the following ways of assessing the relevant impacts of an action the Minister has decided is a controlled action:

(a) an accredited assessment process;
(b) an assessment on preliminary documentation;
(c) a public environment report;
(d) an environmental impact statement;
(e) a public enquiry.

The succeeding provisions of Part 8 deal with each of those procedures. Section 130(2) provides that an assessment report is a report given to the Environment Minister as described in those provisions.

46 Part 9, which is also in Chapter 4, deals with the approval of actions. Under s 133(1), which is in Part 9, after receiving an assessment report relating to a controlled action, or the report of a commission that has conducted an inquiry relating to a controlled action, the Environment Minister may approve, for the purposes of a controlling provision, the taking of the action by a person. However, under s 131(1), before the Environment Minister decides whether or not to approve the taking of an action, he or she must inform any other minister, whom the Environment Minister believes has administrative responsibilities relating to the action of the decision that the Environment Minister proposes to make and must invite the other minister to give the Environment Minister comments on the proposed decision. A minister invited to comment may make comments that relate to economic and social matters relating to the action and that may be considered by the Environment Minister consistently with the principles of ecologically sustainable development.

47 Subdivision B of Division 1 of Part 9 deals with matters that the Environment Minister must consider in deciding whether or not to approve the taking of an action. Section 136 provides that the Minister must take into account:

• the principles of ecologically sustainable development;
• the assessment report relating to the action;
• any other information that the Environment Minister has on the relevant impacts of the action;
• any relevant comments given to the Environment Minister by another minister.

In deciding whether or not to approve the taking of an action by a person, the Environment Minister may consider whether the person is a suitable person to be granted an approval, having regard to the person’s history in relation to environmental matters. However, under s 136(5), the Environment Minister must not consider any matters that the Environment Minister is not required or permitted, by Subdivision B of Division 1 of Part 9, to consider.

48 Section 134 provides that the Environment Minister may attach a condition to the approval of the action, if satisfied that the condition is necessary or convenient for protecting a matter protected by a provision of Part 3 for which the approval has effect. Under s 134(3) the conditions that may be attached to an approval include conditions relating to any security to be given to ensure compliance with the Environment Act and to meet any liability of the person whose taking of the action is approved, for measures taken under s 499 in relation to the action. Section 499 authorises the Commonwealth to repair and mitigate damage caused by contravention of the Environment Protection Act. Conditions that may be attached also include:

• conditions requiring the person to insure against any specified liability to the Commonwealth under s 499;
• requiring an environmental audit of the action to be carried out periodically;
• requiring specific environmental monitoring or testing to be carried out.

49 Division 4 of Part 11 deals with the application of Chapter 4 to actions that are not controlled actions. Under s 160(1), which is in Division 4, before a Commonwealth agency or employee gives an authorisation, however described, of an action described in s 160(2), the agency or employee must obtain and consider advice from the Environment Minister. Section 160(2) describes the following:

• the entry by the Commonwealth into a contract, agreement or arrangement for the implementation of a project that has, will have or is likely to have a significant impact on the environment anywhere in the world;
• the adoption or implementation of a plan for aviation airspace management involving aircraft operations that have or will or are likely to have a significant impact on the environment;
• the adoption or implementation of a major development plan as defined in the Airports Act 1996 (Cth);
• any other action prescribed by the Regulations by reference to the action’s having, or being likely to have, a significant impact on the environment or by reference to a specified person believing that the action has, will have or is likely to have a significant impact on the environment.

Succeeding provisions deal with procedures for seeking the advice of the Environment Minister and the provision of such advice.

THE ISSUE IN THE APPEAL

50 In essence, the issue that arises on the appeal is whether amendment of the National Capital Plan, in accordance with ss 14 to 21 and s 23 of the Planning Act, is capable of constituting an action that has, will have or is likely to have a significant impact on the environment within the meaning of s 28(1) of the Environment Protection Act. Two relevant amendments have been made to the National Capital Plan. To put the dispute in context, it is necessary to say something about the amendments.

AMENDMENT OF THE NATIONAL CAPITAL PLAN

51 As at the beginning of 2003, the National Capital Plan, as amended to that time, was in effect pursuant to s 21 of the Planning Act. It appears to be common ground that, as at that time, the carrying out of the work necessary for the construction of the Extension would have been inconsistent with the National Capital Plan. Further, certain of the work necessary for construction of the Extension would have to be performed in a Designated Area and would not have been in accordance with the National Capital Plan. Accordingly, the Extension was prohibited by ss 11 and 12 of the Planning Act, because to carry out the Extension would have involved an act that is inconsistent with the National Capital Plan and would involve the performance of works in a Designated Area that were not in accordance with the National Capital Plan.

52 As at the beginning of 2003, the National Capital Plan set out the broad planning framework for all of the Territory and provided detailed planning policies and guidelines for Designated Areas. More particularly, the National Capital Plan at that time set out policies in relation to the planning of national and arterial road systems throughout the Territory. Specifically, the National Capital Plan provided for a roadway, originally termed the John Dedman Parkway, that formed an important element in the metropolitan system of peripheral parkways for the Territory. The purpose of the roadway was to provide access to and from Gungahlin, in the north of Canberra, from and to South Canberra, without passing through Central Canberra.

53 Following Parliamentary enquiries in 1991, the Territory government wished to construct the Extension on what was known as the eastern alignment. In 2001, the then Territory government requested an amendment to the National Capital Plan to reflect that decision and confirm the eastern alignment.

54 The Authority prepared a draft amendment to the National Capital Plan, which sought to confirm the eastern alignment. The procedure of public consultation, contemplated by s 15 of the Planning Act, was completed but the finalisation of the amendment had not itself been completed before October 2001, when Territory Legislative Assembly elections resulted in a change in the Territory government. The new Territory government indicated a preference for a western alignment of the Extension. In October 2002, the Territory government announced that it planned to proceed with the western alignment. However, the Authority resolved that it was not in a position to support that proposal.

55 In October 2002, the Authority commissioned a consultant to provide an independent assessment of the proposals for the Extension ‘to inform’ its decision regarding the necessary amendment to the National Capital Plan. The consultant’s work was to include an appraisal of the planning merits of the eastern and western alignments and the assumptions underlying the need for and the nature and scale of the Extension.

56 In early 2003, the Authority submitted to the Planning Minister, pursuant to s 18 of the Planning Act, a draft of proposed Amendment 41 for the National Capital Plan, together with a report on its consultations in relation to proposed Amendment 41. Amendment 41 entailed a change to Figure 1 of the National Capital Plan, which shows the main elements of the arterial road systems. Figure 1 identified a proposed arterial road along the western alignment, although it noted that the final alignment was yet to be determined by the Authority. The proposed arterial road was defined by a broken black line. Amendment 41 entailed the deletion of the broken black line and substitution of a firm black line. Amendment 41 was approved and gazetted in accordance with s 21 of the Planning Act on 4 March 2003 and, pursuant to s 21(2) of the Planning Act, took effect on that day.

57 On 15 February 2003, the Authority placed proposed Amendment 46 on public exhibition pursuant to s 15 of the Planning Act. Thereafter, the Authority carried out the other activities prescribed by s 15. In August 2003, the Authority submitted to the Minister proposed Amendment 46, together with a report on its consultations. On 20 August 2003, the Planning Minister published notice of approval of Amendment 46 in the Government Gazette and, pursuant to s 21(2), Amendment 46 took effect on that day. Amendment 46 redefines the boundary of the Designated Area through which the Extension would have passed such that the eastern alignment is no longer within a Designated Area.

IMPACT ON THE ENVIRONMENT

58 The appellant claims that the course of conduct described above, in so far as it was undertaken by the Authority, which is a Commonwealth agency for the purposes of the Environment Protection Act, contravened s 28(1) of that Act. The appellant says that that course of conduct, culminating with Amendment 41 and Amendment 46 taking effect pursuant to s 21, was an activity or series of activities, within s 523(d), so as to constitute an action that has, will have or is likely to have a significant impact on the environment.

59 That question is essentially a question of fact. However, the parties have conducted the litigation, both before the primary judge and before the Full Court, on the basis that there is a preliminary legal question as to whether such a course of conduct is capable of constituting action that has, will have or is likely to have a significant impact on the environment.

60 The appellant contends that the consequence of Amendments 41 and 46 taking effect is that work necessary for the construction of the Extension, which was previously prohibited by ss 11 and 12 of the Planning Act, is no longer prohibited. The appellant also asserts that that work has, will have, or is likely to have, a significant impact on the environment. Therefore, so it is said, the mere making of the amendments has, will have, or is likely to have, a significant impact on the environment. The Commonwealth and the Territory, on the other hand, contend that amendment of the National Capital Plan, and the steps taken under the Planning Act to make such an amendment, could not in any circumstances have any impact on the environment, much less a significant impact.

61 Impact might be defined in the following ways (Macquarie Dictionary):

‘1. The striking of one body against another
2. An impinging: the impact of light on the eye
3. Forcible contact or impinging: the tremendous impact of the shot
4. Influence or effect exerted by a new idea, concept, ideology, etc’

That word is singularly inappropriate to describe what might happen in relation to the environment, except in a physical sense. The environment, as defined for the purposes of the Environment Protection Act, is the physical world. It is not a jurisprudential construct or a judicial right or duty. For an action to have an impact on the environment, the action must have some effect in the physical world.

62 The mere removal of a legal obstacle in the way of action that might have an impact on the environment does not itself have any impact on the environment. What has impact is the action that takes place as a consequence of the removal of the legal prohibition.

63 The detailed analysis of the Environment Protection Act set out above confirms that there must be a physical connection between the controlled action and the impact on the environment before s 28 comes into effect. There is nothing in the Environment Protection Act that suggests that action could have an impact on the environment when that action is nothing more than an executive or quasi legislative act that removes a legal prohibition on an activity, or series of activities, that does have a physical impact on the environment.

64 The work that would be necessary for the construction of the Extension would clearly be action that could have an impact on the environment. That impact may well be a significant impact. The executive or quasi legislative activity involved in the promulgation of an amendment to the National Capital Plan could have an impact on the environment, in so far as that activity involves the use of materials and the consumption of energy needed to produce electricity to operate office equipment and the like. However, such an impact could scarcely ever be characterised as significant. While the question of whether such an activity might have a significant impact on the environment is a factual matter, it would be futile to permit an action to proceed in order to determine whether such activity is likely to have a significant impact. It is patently obvious that such activity would not have a significant impact on the environment: the mere preparation and promulgation of amendments to the National Capital Plan could not have a significant impact on the environment.

CONCLUSION

65 It follows that the appeal should be dismissed with costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 15 September 2005

Counsel for the Appellant:	Dr PA Mees
Solicitor for the Appellant:	Porters Lawyers
Counsel for the First Respondent:	PJ Hanks QC
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	Dr JE Griffiths SC with CM Erskine
Solicitor for the Second Respondent:	ACT Government Solicitor
Date of Hearing:	11 May 2005
Date of Judgment:	16 September 2005