Court dismisses CCWA challenges to 'change of proposal' decisions by the EPA

On 1 March 2022 the Supreme Court of Western Australia published its decisions in the matters of Conservation Council of Western Australia Inc. v Chairman, Environmental Protection Authority [2022] WASC 58 and Conservation Council of Western Australia Inc. v Chairman, Environmental Protection Authority [2022] WASC 59.

The decisions are in respect of the Conservation Council of Western Australia's (CCWA) challenge of two 'change to proposal' decisions by the Environmental Protection Authority (EPA) under section 45C of the Environmental Protection Act 1986 (WA) (EP Act).

Snapshot

1. The decisions relate to Woodside's Pluto LNG and North West Shelf Gas Projects.
2. The applications for judicial review were brought out of time. Allanson J refused leave to proceed and dismissed both applications.

Overview 

CCWA relied on, in effect, four ground in support of its contention that the Chairman’s decision was beyond power across the applications. Those grounds related to the manner in which the EPA considered the impacts of the changes and made the decision under section 45C. Specifically, CCWA argued that the EPA Chairman:

1. did not personally perform the duty imposed on him under section 45C(2) of the EP Act to form an opinion as to whether the proposal might have a significant detrimental impact on the environment in addition to the effect of the original proposal;
2. failed to form an opinion as to whether the proposal might have a significant detrimental impact on the environment in addition to the effect of the original proposal, and instead wrongly formed the opinion that the changes to the proposal were ‘unlikely to result in’ such detrimental impacts;
3. was required to, and did not, evaluate the detriment to the environment of the proposal as implemented in fact. CCWA’s argument in this ground relied upon a passage from Re Minister for the Environment; Ex parte Elwood [2007] WASCA 137 and the ‘six step test’; and
4. was required to, and did not, assess the environmental impact of the proposed change against the same criteria as the original proposal, in that he did not assess the impact by reference to the total greenhouse gas emissions of the project, despite the original proposal being so assessed.

All grounds were dismissed by Allanson J on the basis of lack of evidence and consistency of the EPA decision-making with the statutory regime.

The judicial review applications were not made by CCWA within the 6 month period under the Supreme Court rules. His Honour found that there was not sufficient justification for such a long delay in this case, which he found was ‘excessive and unwarrantable’. His Honour also referred to the evidence filed by Woodside as to the prejudice it would suffer if leave were granted. This evidence was received on a confidential basis, and so is not discussed in any detail in the decisions. However, there was evidence of decisions and actions Woodside had taken on the basis of the section 45C approvals and the potential prejudice to Woodside was acknowledged by Allanson J.

Implications

To some extent, the decisions can be confined to their facts, with the grounds of challenge in each case focusing on the inferences that could be drawn from the agreed facts and documentary evidence. However, there are a number of key takeaways from the decisions:

1. The cases show the inherent obstacles to challenging administrative decisions on the basis of inferences drawn from agreed facts and documentary evidence. This has the potential to give challengers pause for thought before bringing judicial review proceedings in similar decision making settings.
2. The Court’s decision to refuse leave to proceed out of time is an important restatement of the usual principle that, in the case of judicial review applications, limitation periods are not mere guidelines, and that, where there is a lengthy delay in bringing proceedings, the evidence must properly explain and justify the delay.
3. Although section 45C of the EP Act has been amended, relevantly, to remove the word ‘might’, the decision generally provides useful guidance around the Part IV statutory regime and that decision making processes will have a level of flexibility as to the manner of assessment and consideration.

Next steps

CCWA may appeal either decision of Allanson J in the Court of Appeal within 21 days after the date of the decision.

We have closely reviewed the decisions and are available to provide comprehensive summaries and further support in identifying issues that may be relevant to your business. Please contact Melanie Debenham or Elizabeth Macknay to further discuss the implications of the decisions.

By Elizabeth Macknay, Managing Partner, Melanie Debenham, Partner, and Christopher Hicks, Senior Associate.