Insights

In brief

The Whitsunday Residents Group challenged the lawfulness of the decision by the Environment Department to give an environmental authority to Adani for prescribed environmental activities for a proposed coal terminal at the Port of Abbot Point. The application for judicial review was based on a number of matters, most relevantly that the decision was an improper exercise of power as a result of a perceived failure of the Environment Department to consider the applicable statutory requirements in an assessment report, particularly where this report was dated after the date of the decision to approve the environmental authority. The Supreme Court relevantly determined that there was no legal error in the Environment Department's decision and that the Environment Department's decision to grant Adani's environmental authority should be upheld.

Judicial review of a decision to give an environmental authority for Adani's port expansion

The case of Whitsunday Residents Against Dumping Ltd v Chief Executive, Department of Environment and Heritage Protection and Anor [2017] QSC 121 relates to the proposal by Adani Australia Coal Terminal Pty Ltd to expand the Abbot Point coal terminal as part of the construction of the broader transport infrastructure network for the operation of the proposed Carmichael Mine.
 
The Whitsunday Residents Against Dumping Ltd applied to the Supreme Court of Queensland for judicial review of a decision by the Department of Environment and Heritage Protection to approve an application under the Environmental Protection Act 1994 for an environmental authority for prescribed environmentally relevant activities for the proposed expansion of the Abbot Point coal export terminal.

Environment Department required to undertake an environmental objectives assessment of Adani's application

The Environmental Protection Act 1994 relevantly required the Environment Department to undertake an environmental objectives assessment in deciding Adani's application for an environmental authority.
 
The Environmental Protection Regulation 2008 relevantly states the following matters for the environmental objectives assessment:
  • The Environment Department must decide the extent to which the application achieves each relevant environmental objective.
  • In deciding each environmental objective the Environment Department must decide: 
    • whether the application achieves item one of the stated performance outcome for the environmental objective; and
    • if not, whether the application achieves item two of the stated performance outcome.
  • The application achieves an environmental objective if the Environment Department is satisfied the application: 
    • achieves item one or item two of the stated performance outcome for the environmental objective; or
    • includes alternative measures to achieve the environmental objective.

Whitsunday Residents Group questioned the sufficiency of the assessment report upon which the Environment Department's decision was based

The Environment Department prepared an assessment report which the decision-maker stated that she had relied upon in deciding to approve Adani's application. The sufficiency of the assessment report to satisfy the Environment Department's environmental objectives assessment formed the basis of the Whitsunday Residents Group's legal challenge.
 
The issues raised with the assessment report primarily related to the following:
  • Date of assessment report – The assessment report was signed by the decision-maker on 10 December 2015, being three days after the Environment Department approved Adani's application.
  • Legislative test not properly applied – That, in the Whitsunday Residents Group's view, the assessment report made "no discernible attempt" to carry out the environmental objectives assessment given the report did not identify where the assessors (at [54]): 
    • decided the extent to which Adani's application achieved each relevant environmental objective;
    • assessed whether the relevant environmental objective was achieved by meeting item one or two of the stated performance outcome; and
    • assessed whether an alternative measure is proposed.
  • Incorrectly stated reason for refusal – The assessment report stated that the decision-maker "should only consider refusing an application if one or more of the following apply…" (at [71]). One of the listed reasons was not commensurate with the legislation.

Grounds for judicial review all related to the assessment report

The Whitsunday Residents Group relevantly argued that the defects in the assessment report resulted in the following:
  • Improper exercise of power – That the Environment Department improperly exercised its power by: 
    • failing to take a relevant consideration into account, on the basis that the assessment report was dated after the decision and was therefore not taken into account;
    • not seriously engaging with the statutory requirements, on the basis that the assessment report, to the extent it was taken into account, did not expressly refer to the elements of the legislative test; and
    • taking into account an irrelevant consideration, on the basis that the assessment report, to the extent it was taken into account, stated an incorrect reason for refusal.
  • Non-observance of procedure – That the Environment Department had failed to follow a necessary statutory procedure by: 
    • not considering the assessment report before making its decision on Adani's application, on the basis that the decision was made before the date of the assessment report; and
    • failing to make any serious attempt to follow the requirements for the environmental objectives assessment, on the basis of the issues that the Whitsunday Residents Group raised with the assessment report.
  • Want of jurisdiction – That the Environment Department had no authority to decide Adani's application, on the basis of the issues raised with the environmental objectives assessment in the assessment report.
  • Error of law – That the Environment Department had committed an error of law in making its decision, on the basis of a "significant failing" in the environmental objectives assessment in the assessment report (at [76]).

Environmental objectives assessment held to be valid despite issues raised with the assessment report 

The Supreme Court of Queensland decided to dismiss the Whitsunday Residents Group's application for judicial review and dealt with the three issues raised with the assessment report by determining as follows:
  • Date of assessment – Whilst the assessment report was dated after the decision was made, the decision-maker had received a draft of the report and had regular consultations with the person preparing the report about the relevant issues for consideration in the report. Further whilst the content of the assessment report was approved on the date of the decision, the discrepancy with the dates was explained because the report itself was signed as part of a "notice of decision" which was required to be sent within five days of the decision.
  • Legislative test not properly applied – The assessment report was a mere internal administrative record and not a statement of reasons and should therefore not be strictly construed. When the report was read as a whole, it was clear that the assessor had applied the legislative test and determined that Adani's application achieved item two or both item one and two of the performance outcome for each applicable environmental objective.
  • Incorrectly stated reason for refusal – The incorrect reason for refusal did not impact on the assessment report's considerations in the body of the report and it could not be inferred that the statement actually influenced the decision-maker.
The Supreme Court therefore determined that none of the Whitsunday Residents Group's grounds for judicial review were made out and the Environment Department's decision to grant Adani's environmental authority was lawful.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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