FEDERAL COURT OF AUSTRALIA

Friends of Merri Creek Inc v Meakins [2003] FCA 671

ADMINISTRATIVE LAW – judicial review – s30 of Australian Heritage Commission Act 1975 (Cth) – effect of non-compliance – failure to take into account relevant considerations

ENVIRONMENT – duty of decision-maker to avoid “action that adversely affects” part of  the National Estate

WORDS AND PHRASES – “no feasible and prudent alternative”

Australian Land Transport Development Act 1988 (Cth) ss 26, 27, 39

Australian Heritage Commission Act 1975 (Cth) ss 4(1), 30, 47

Department of Transportation Act 1966 82 Stat 824, 49 USC § 1653(f) s4(f)

Association Concerned About Tomorrow Inc v Dole 610 FSupp, 1101 (D.C. Tex 1985) cited

Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200 disapproved

Citizens to Preserve Overton Park Inc v Volpe 401 US 402 (1971) followed

Coalition for Responsible Regional Development v Brinegar 518 F2d 522 (4^th Cir 1975) cited

DC Federation of Civic Associations v Volpe 459 F2d 1231 (D.C. Cir 1971) cited

Louisiana Environmental Society Inc v Coleman 537 F2d 79 (5^th Cir 1976) cited

Metropolitan Borough & Town Clerk of Lewisham  v Roberts [1949] 2 KB 608 considered

Re Reference under Section 11 of the Ombudsman Act 1976; Ex Parte Director General of Social Services (1979) 2 ALD 86 applied

Stop H-3 Association v Dole 740 F2d 1442 (9^th Cir 1984) cited

Yates Security Services Pty Ltd v Keating (1990) 98 ALR 21, overruled by the Full Federal Court in Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 discussed

B Miller, “Department of Transportation’s Section 4(f): Paving the Way Towards Preservation” 36 American University Law Review 633 (1987)

Parliament of the Commonwealth of Australia, National Estate – Report of the Committee of Inquiry, Parliamentary Paper No 195, 19 September 1974 (the Hope Report)

FRIENDS OF MERRI CREEK INCORPORATED v JUDITH ANNE MEAKINS (ACTING FIRST ASSISTANT SECRETARY TRANSPORT PROGRAMMES, DEPARTMENT OF TRANSPORT AND REGIONAL SERVICES) and MINISTER FOR TRANSPORT AND REGIONAL SERVICES

V 207 of 2002

FINKELSTEIN J

4 JULY 2003

MELBOURNE

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      Each party bear his or its own costs of and incidental to the proceeding. 

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

REASONS FOR JUDGMENT

1                     On 30 August 2001, Ms Meakins, then the Assistant Secretary, Roads Investment, as delegate of the Minister for Transport and Regional Services (“the Minister”), decided to approve Commonwealth funding for pre-planning works to realign the Hume Highway between Craigieburn and the Metropolitan Ring Road north of Melbourne.  The new link promises to eliminate a heavily congested section of the principal transport route connecting Melbourne to the northern regions of Victoria and beyond.  The link will cut its way through the north-eastern section of the Craigieburn to Cooper Street grasslands, habitat for 237 native plants and 114 animal species, including many that are rare or threatened, and which contain cultural values, both indigenous and non-indigenous, documented or assessed by the Australian Heritage Commission.  Listed amongst the 12,000 places of natural, historic and indigenous significance in the register of the Commission, the grasslands represent some of the best remaining examples of the kind of country that covered much of the western basalt plains in Victoria before European settlement. 

2                     Friends of Merri Creek are a community organisation formally constituted in 1988.  Over the decades, the organisation has significantly replanted, restored, conserved, protected and improved the environment of the Merri Creek catchment area, which forms part of the grasslands.  As part of their endeavour to restore the Merri Creek environs, over the past six years Friends of Merri Creek have campaigned against any realignment of the Hume Highway that would adversely affect the Merri Creek Valley.  The campaign includes this application for review of the delegate’s decision. 

3                     The proposal to realign this section of the Hume Highway is not new.  In 1975, a reservation for a connection between Craigieburn and the Western Ring Road was inserted in the Victorian planning schemes (with two amendments in 1977 and 1978).  This was part of a long-term strategy to convert the Hume Highway to freeway standard from the New South Wales border to the Western Ring Road.  The original planning scheme reservation intersected 400 hectares of the grasslands and crossed Merri Creek in three places.  Aware of the importance of the grasslands and concerned about the existing location of the reservation, in March 1996, the Victorian Minister for Conservation and Natural Resources announced the creation of the Craigieburn Grasslands Flora and Fauna Reserve, which resulted in the reservation being moved to the eastern boundary of the Craigieburn site.  In early 1997, the Victorian government turned to the Commonwealth government for funding to convert the final section of the Hume Highway to freeway status.

4                     On 26 March 1997 the Minister approved funding for pre-construction work for the Hume Highway link.  The decision to fund this work was made pursuant to s 26 of the Australian Land Transport Development Act 1988 (Cth) (“the Transport Development Act”).  The Transport Development Act establishes a financial reserve for the purposes of the development and maintenance of land transport systems and for related purposes.  Section 26 of the Transport Development Act gives power to the Minister to direct or invite a State to submit certain particulars of projects for the construction of national highways to be undertaken by the State and to approve the provision of financial assistance for those projects.  A standing direction exists for States to submit a project or program for approval and Commonwealth funding at any time. 

5                     The decision the subject of this application is not, however, a decision made under s 26.  In fact, it is a decision made under s 27 of the Transport Development Act to vary the original decision under s 26 to approve the project.  Section 27 provides that the Minister may approve a variation of a project, the estimated cost of a project or the costs that are to be met by payments out of the reserve in certain circumstances.

6                     It is relevant to the relief which the applicants seek, and to which I will later turn, that the approved funding was limited to pre-construction activities, including the cost of land acquisition, reimbursement of the cost of land already acquired and the engagement of consultants.  The decision was not one approving funding for the actual construction of the realignment.  Such a decision has, in fact, been made but it is not the subject of this proceeding. 

7                     The decision under review is a “Stage 2 approval”.  To appreciate what this means, it should be noted that approval for the funding of major road projects is usually given under a staged approach.  Funding for projects is approved in one, two or three stages, dependent upon the project’s complexity.  The staging of approvals allows the Commonwealth to review its commitment to the next stage of development as estimates of the project’s funding profile and timing take shape.  The first stage involves carrying out a preliminary investigation for a major project.  Stage 2 consists of the approval of the costs associated with the detailed planning and design of the project.  Stage 2 approval does not approve construction, nor does it constitute approval for a State to proceed to call tenders.  Once the initial stage 2 approval has been given under s 26, all subsequent approvals for progressive stage 2 works are made as variations to approved projects under s 27 of the Transport Development Act.  In fact, the decision under review is the fourth variation to the s 26 approval.  Later decisions have been made approving the actual design and construction of the road on the condition that certain environmental requirements will be met.  Stage 3 approval commits the Federal government to funding the total estimated cost of the project.  The amount may be reviewed in certain circumstances. 

8                     The steps taken to obtain Commonwealth funding commenced on 2 January 1997 when the Chief Executive of the Victorian Roads Corporation, a Victorian statutory authority (“Vicroads”), wrote to Neville Potter, the Assistant Secretary, Roads Investment, Commonwealth Department of Transport and Regional Development (“Department of Transport”), seeking approval for funding for preliminary works for the construction of the final section of the Hume Highway conversion.  On 22 January 1997, Mr Potter conditionally approved the funding, pending receipt of the requisite environmental certification.  To obtain approval at stage 2, a State must submit a Project Proposal Report (PPR).  If a PPR revealed that stage 3 approval would constitute an “environmentally significant action” under the (now repealed) Environmental Protection (Impact of Proposals) Act 1974 (Cth) (EPIP Act), the Transport Minister was required to designate the project under the EPIP Act and a “proponent” chosen by the Minister would notify the Department of Environment and Heritage (Environment Australia) of that designation and refer the proposed project to it under the EPIP Act.

9                     Mr Potter received notification on 28 February 1997 that the environmental implications for the proposed project had been assessed in accordance with the procedures agreed between Vicroads and the then Victorian Department of Planning and Development and that the proposed project would not affect the environment to a significant extent within the meaning of the EPIP Act.  On 23 March 1997, Mr Potter recommended to the then Commonwealth Minister for Transport that planning works be approved subject to the certification by Vicroads that work will not commence pending resolution of environmental issues.  The ministerial brief advised the Minister that the Transport Department was not aware of any reason why the proposed works would affect the environment to a significant extent.  The Minister approved the funding in accordance with s 26 of the Transport Development Act on 26 March 1997.  VicRoads was informed of the Minister’s approval by letter dated 2 May 1997.  

10                  Meanwhile at State level, on 27 March 1997, the then Victorian Minister for Planning and Local Government had made a determination under the Victorian Environment Effects Act 1978 that an Environment Effects Statement (EES) would not be required for the proposed project.  However, the realignment would require an amendment to the Victorian planning scheme.  The Minister therefore requested the preparation of a Planning Assessment Report (PAR) by Vicroads and the appointment of an Advisory Committee (“the Advisory Committee”) under s 151 of the Planning and Environment Act 1987 (Vic) (“the PE Act”) to examine issues he specified under terms of reference and to conduct public hearings.  This enquiry was to take place in lieu of an EES.  The terms of reference required the Committee to consider various options for modifying the alignment of the Hume Highway Reservation; to review the information prepared by Vicroads about the environmental, social and economic impacts of the various options; and to make a final report.

11                  At about the same time, an officer in the Department of Transport discovered that the grasslands were on the Interim List in the Register of the National Estate which is maintained pursuant to Part IV of the Australian Heritage Commission Act 1975 (Cth) (“the Heritage Act”).  Section 4(1) of the Heritage Act, defines the National Estate as consisting of:

“those places, being components of the natural environment of Australia or the cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community.”

A place is listed on an interim basis after being publicly proposed for entry in the Register and while the Commission waits for objections, considers objections or seeks other information before making a decision on whether the place should be entered in the Register. 

12                  Following a telephone conversation between an officer of the Department of Transport and the Commission concerning the interim listing, on 1 July 1997 the Commission wrote to the Department of Transport advising it of its obligations under the Heritage Act when determining whether or not to grant the funding.  Part V of the Heritage Act is headed “Protection of the National Estate”.  Section 30, which is found in Part V, relevantly provides:

“(1)     Each Minister shall give all such directions and do all such things as, consistently with any relevant laws, can be given or done by him or her for ensuring that the Department administered by him or her or any authority of the Commonwealth in respect of which he or she has ministerial responsibilities does not take any action that adversely affects, as part of the national estate, a place that is in the Register unless he or she is satisfied that there is no feasible and prudent alternative to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken and shall not himself or herself take any such action unless he or she is so satisfied.

(2)               …

(3)               Before a Minister, a Department or an authority of the Commonwealth takes any action that might affect to a significant extent, as part of the national estate, a place that is in the Register, the Minister, Department or authority, as the case may be, shall inform the Commission of the proposed action and give the Commission a reasonable opportunity to consider and comment on it.

(4)               For the purposes of this section, the making of a decision or recommendation (including a recommendation in relation to direct financial assistance granted, or proposed to be granted to a State) the approval of a program, the issue of a license or the granting of a permission shall be deemed to be the taking of action and, in the case of a recommendation, if the adoption of the recommendation would adversely affect a place, the making of the recommendation shall be deemed to affect the place adversely.”

The letter from the Commission described the Department of Transport’s obligations as follows:

“Section 30 thus seeks to prevent unnecessary destruction or degradation of the national estate by the Commonwealth.  It requires that a Commonwealth body determine:

1)         whether or not its proposed action will have an adverse effect on a national estate place;

2)         if so, then whether this action is unavoidable due to the absence of feasible and prudent alternatives; and

3)         if unavoidable, what measures can be taken to minimise adverse effects.”

The Commission noted that the Department of Transport had already approved funding to VicRoads for planning works, and considered that the provision of any impact assessment should address all Commonwealth concerns.  The Commission gave the following advice:

“Given the significance of the grasslands and the presence of threatened species, it is highly probable that any decision to grant funding for the road construction would also need to consider the environmental obligations of the Environment Protection (Impact of Proposals) Act and the Endangered Species Protection Act. 

The Commission strongly recommends that the most effective and timely manner to address these and national estate obligations would be for your department to designate the proposal under the EPIP Act as a matter of urgency, so that joint Commonwealth-State assessment can occur…”

13                  As a consequence, the original recommendation by VicRoads, which had asserted that the proposed project would not affect the environment to a significant extent within the meaning of the EPIP Act, was amended to accommodate the obligations owed by the Transport Minister under the Heritage Act.  On 5 July 1997, Mr Potter wrote to Vicroads advising that it was the designated proponent of the project under the EPIP Act and nominated Mr Jordon, Chief Executive of Vicroads, as the proponent of the environmental assessment review.  In his letter, Mr Potter referred to the existing Victorian environmental protection arrangements in place, advised that they were deficient, and requested that they be reviewed.  Mr Jordon replied to Mr Potter’s letter.  He said that all planning was being managed in accordance with the relevant Victorian guidelines and legislation and the arrangements developed between the Commonwealth Department of Environment, Sport and Territories (the department which succeeded the Department of Environment and Heritage and was also known as “Environment Australia”) and Victoria’s Planning and Heritage Department, in order to meet Commonwealth requirements. 

14                  On 16 July 1997, Mr Jordon requested, and on 21 September 1997, Mr Potter approved, a variation of funding under s 27 of the Transport Act to cover the additional cost incurred in the investigation of various freeway realignment options.  By that time, six options were under investigation by Vicroads, details of which had been sent to Mr Potter on 11 September 1997. 

15                  The Advisory Committee held a meeting on 29 September 1997.  Environment Australia tabled a submission suggesting that the Advisory Committee consider various alternatives to the six options then under consideration, including a “no construction” option.  The submission was later amended to take account of listings under the Endangered Species Protection Act 1992 (Cth) (“the ESA”).  Later, there were discussions between Environment Australia, the Victorian Department of Planning and Local Government and Vicroads during which it was agreed that a cooperative environmental assessment be undertaken to satisfy the EPIP Act, the Heritage Act and the ESP Act.  The agreement was confirmed by letter dated 17 October 1997 from Environment Australia to the Director of the Victorian Department of Infrastructure.  By this time, the Advisory Committee had agreed to investigate further alternative transport options including the option whether there was a need for a realignment at all.  So, as at December 1997, the Advisory Committee had before it seven options under investigation. 

16                  By letter dated 12 October 1998, the Victorian Minister for Planning and Local Government confirmed to the Advisory Committee that its Terms of Reference required it to determine whether an acceptable alignment was available and a further Term of Reference was subsequently added to its brief:

“To recommend any planning or other measures to manage land use and to protect native grasslands and other environmental features in the area affected by a recommended freeway alignment, if one is identified.”

17                  In October of 1998, one year before the release of the Advisory Committee’s report, VicRoads published the Planning Assessment Report (“PAR”) which had been requested by the Minister for Planning and Local Government on its appointment in March 1997.  The PAR examined the seven options and recommended Option 1.  By that time, the grasslands had been entered into the Register of the National Estate. 

18                  The Advisory Committee conducted further public hearings during May 1999 for the purpose of giving people an opportunity to be heard in support of their submissions in relation to VicRoad’s PAR.  Forty-eight written submissions were received and all those who had filed a submission were given an opportunity to be heard.

19                  In October 1999, the Advisory Committee released its report which, after considering each of the seven options, recommended Option 5 as the preferred route.  The report referred to the Heritage Act and stated that one of the Advisory Committee’s objectives had been the protection of any place in the Register of the National Estate from adverse effects to the “maximum extent that is feasible and prudent” as well as to “take all measures” that could reasonably be taken to “minimise the adverse effect”.  The report commented that this “places an extremely high onus on those responsible to protect places in the Register” and “casts an onus on VicRoads to establish why traffic benefits and costs should outweigh environmental and cultural values.” 

20                  The Victorian Minister for Planning was not satisfied with the range of options considered by the Advisory Committee and directed the Department of Planning and Local Government (now called the Department of Infrastructure) to convene a working party together with the Victorian Department of Natural Resources and Environment and VicRoads to investigate further alternative routes.  The objective of the working party was to identify an alignment and design a cost-effective freeway link that would, among other things, prevent if possible impacts on habitats of national significance and avoid or minimise impacts on habitats of State significance and protect areas and sites of natural or cultural significance.

21                  The working party identified three additional options as having sufficient merit to warrant more detailed examination.  These were identified as Options X, Y and Z.  The Victorian Department of Infrastructure report was released in July 2000 outlining the considerations and on 21 August 2000, the Minister for Planning appointed a Second Advisory Committee under s 151 of the PE Act to conduct public hearings and investigate and report on matters set out in new Terms of Reference. 

22                  Meanwhile, the EPIP Act was repealed on 16 July 2000 and, following the commencement of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), agreement was reached between VicRoads as designated proponent of the project and the Environment Minister pursuant to item 5 of Schedule 1 to the Environmental Reform (Consequential Provisions) Act 1999 (Cth) that the EPIP Act should still continue to apply to the proposed project.

23                  The Second Advisory Committee’s Report was published in December 2000 and recommended Option Y as the preferred route. 

24                  On 20 February 2001, the Victorian Minister for Planning forwarded to the Transport Minister his assessment of the proposed project.  In his assessment, the Victorian Minister concluded that the recommendations of the Second Advisory Committee should be adopted.  On 21 February 2001, the Premier of Victoria, together with his Ministers for Planning and Transport announced that the government had approved the recommendation by the Committee of Option Y as the preferred route for the realignment. 

25                  On 21 March 2001, the General Manager of Road System Management at VicRoads wrote to Mr Potter seeking further stage 2 approval for Federal funding of $38 million for pre-construction and land acquisition activities.  The request noted that the Victorian government had approved the recommendation of Option Y and that VicRoads was to prepare a Project Environmental Protection Strategy.  The Department of Transport withheld its approval pending final resolution of all environmental and alignment issues. 

26                  As at late July 2001, a modification to Option Y was still being considered by Vicroads.  Apparently, the Victorian Minister for Transport had suggested that the route should not traverse the Whittlesea Gardens.  The Victorian Minister for Planning sought the Federal Transport Minister’s approval prior to amending the relevant planning scheme.  The modification was approved on the basis that the Victorian government would be responsible for the added costs to the project subject to any environmental matters.

27                  In late August 2001, Ms Meakins, prepared a minute to the Minister for Transport, recommending that the Minister send a letter to the Victorian Minister for Transport seeking assurance that his Department would give appropriate consideration to a report co-authored by Professor Russell, Melbourne’s Northern Gateway:  An Integrated Approach, (“the Russell report”) and advising that there were many recommendations in the Russell report covering public transport and rail freight options, which might merit consideration “following finalisation of the route selection process”.  It was noted that because the Russell report recommended alternatives to the original Craigieburn Bypass, many of the report’s recommendations had been overtaken.  Ms Meakins’ advice was accepted and the Minister for Transport sent the letter to his Victorian counterpart on 16 September 2001.  The Russell report is of some importance and I will discuss it in more detail later.

28                  On 23 August 2001, the Commonwealth Environment Minister wrote to the Transport Minister advising that neither a PER nor an EIS would be required under the EPIP Act.  The Environment Minister suggested that the approval for further Federal funding for the project be granted subject to a number of conditions.  One condition was that Vicroads should consult with the Commission and Environment Australia “on the development of Environmental Management Plans that affect matters on the Register of the National Estate”.

29                  The decision granting approval for further funding (being the decision under review) was then made.  Following that decision, there was a stage 3 approval for the design and construction of the Connection Road between the proposed bypass and the Hume Freeway.  Later, a request from VicRoads for an additional $263m for a stage 3 variation to the project was approved on the condition that the environmental requirements set by Environment Australia during stage 2 were met.  None of the decisions made either before or after the decision of 30 August 2001 are subject to challenge. 

30                  Before turning to the grounds upon which the decision is challenged, a number of preliminary observations should be made.  The first concerns the identity of the decision-maker.  I have already mentioned that the decision to approve the funding was made by Ms Meakins.  She was acting as delegate of the Minister for Transport pursuant to a delegation made under s 39 of the Transport Development Act.  According to Re Reference under Section 11 of the Ombudsman Act 1976; Ex Parte Director General of Social Services (1979) 2 ALD 86, a decision of the then President of the Administrative Appeals Tribunal, Brennan J, such an act by a delegate is not to be treated as vicariously done by the Minister.  The delegate is not the agent of the Minister but may herself exercise the power conferred on the Minister.  It follows that the decision under challenge is the decision of the delegate, and not a decision that should be attributed to the Minister.

31                  The second observation concerns the subject matter of the delegation.  According to the instrument of delegation the Minister delegated his powers and functions under s 26 and s 27 of the Transport Development Act.  It has been assumed that this delegation is sufficient to confer upon the delegate the right, as well as to impose upon her the duty, to reach the state of satisfaction required by s 30 of the Heritage Act when making a decision under s 26 or s 27 of the Transport Development Act.  I am prepared to proceed upon the correctness of this assumption, although I am bound to say that the reasons for it are not self-evident.  Perhaps the parties had in mind s 34A of the Acts Interpretation Act 1901 (Cth).  According to that section, where the exercise of a power or function is dependent upon the opinion, belief or state of mind of the decision-maker and that power or function has been delegated, the power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate. 

32                  The third preliminary observation is related to the second.  It is whether the duty imposed by s 30 is in fact capable of being delegated to the person who is delegated to make a decision under s 26 or s 27 of the Transport Development Act.  There is, of course, a power of delegation in the Heritage Act itself.  It is found in s 47.  But that power is limited to a delegation of the Commission’s powers.  It has no application to the duty imposed upon the Minister by s 30.  This notwithstanding, the case has been argued upon the assumption that the Minister’s duty could be assumed by the delegate.  It is not necessary to determine whether this assumption is well-founded, or whether the state of satisfaction referred to in s 30 must be a state of satisfaction reached by the Minister himself after due enquiry.  The parties have chosen their battleground, and it cannot be shifted by the court. 

33                  The final observation concerns the manner in which a decision-maker can reach the state of satisfaction required by s 30.  It will by now be apparent that the processes leading to the making of the impugned decision were complex and undertaken by a number of persons and organisations at both Federal and State level.  It appears to have been accepted on both sides that the entire process of enquiry and investigation, including the matters taken into account and the views formed from time to time by the relevant State and Federal bodies and officials, could be adopted by, or attributed to, the delegate.  This is not an instance of delegation in the strict sense, but is similar to the case where the decision-maker’s satisfaction is reached through the activities of officers in the decision-maker’s department such as was considered in Metropolitan Borough & Town Clerk of Lewisham  v Roberts [1949] 2 KB 608.  It seems to me (although I do not make a finding to that effect) that once it is accepted (as in this case the parties have accepted) that the obligation imposed by s 30 need not be observed by the Minister personally, because to hold otherwise would create unreasonable difficulties in the administration of the Transport Devolpment Act, then it probably follows that the person with the delegated power need not personally deal with every aspect of the deliberative process.  If the deliberative process which is in fact undertaken covers everything that should be dealt with, it seems appropriate that the decision-maker can “adopt” that process as her own. 

34                  We can now deal with the grounds of challenge.  Three grounds are relied upon:

1. The delegate was required to, but did not, consider whether she was satisfied that there was “no feasible and prudent alternative” to modified Option Y, as required by s 30 of the Heritage Act;
2. If it was considered by the delegate, s 30 was misapplied in the sense that the delegate misunderstood the task required by the section; and
3. If the delegate did consider the application of s 30, she failed to take into account the Russell report, that is, she failed to take into account relevant material.

There was a fourth ground based on an allegation that there was no evidence for the decision but this was not pressed during the hearing. 

35                  The delegate did not dispute that s 30 of the Heritage Act obligated her to satisfy herself that the grasslands, being a place in the Register of the National Estate, were not to be adversely affected unless there was “no feasible and prudent alternative” and that “all measures” that could “reasonably be taken to minimise the adverse effect” would be taken.  Again, it is unnecessary to decide whether this concession was properly made.  For the record, however, I should indicate that there is real doubt whether all decisions made under s 26 and s 27 of the Transport Development Act in connection with a particular project require compliance with s 30 of the Heritage Act.  It is more likely that only the decision (there may be more than one decision) which can be characterised as the “operative” or “substantive” decision for a project to go ahead, is a decision which is dependent upon the relevant state of satisfaction being reached under s 30.  Here, however, the substantive dispute between the parties is whether the delegate took the section into account at all.  According to the applicants, the delegate failed to consider s 30, either personally or when adopting the findings made during the investigatory process. 

36                  This allegation is derived principally, though not entirely, from the delegate’s written statement of the reasons for her decision.  The reasons are not lengthy.  They commence with a section which sets out the “Relevant Legislation”.  Here, there is no mention of the Heritage Act.  Then there is a section headed “Background”.  In this section, the delegate indicates that when she made her decision, she was aware that the then Assistant Secretary, Roads Investment, Department of Transport, had designated the Chief Executive of VicRoads as the proponent of the project under the EPIP Act because the proposed road would cross “part of national estate grassland”.  The next section purports to set out the delegate’s “Findings of Material Questions of Fact”.  In this section the delegate sets out “the matters [she says were] taken into account … and [her] findings in relation to each of those matter[s].”  Included among those matters are “a number of environmental and route alignment issues [that] had not been finalised”.  The delegate accordingly “withheld approval until [she] had received an assessment from the Federal Minister for the Environment and Heritage”.  The delegate also made the observation that the project was “the best solution to enhance the operation of the national highway system and would be consistent with the purposes for which the Special Account was established.  The Victorian planning process identified appropriate solutions to traffic, environmental and social impacts of the project and determined that the project was warranted.”  Next there is a section headed “Evidence on which Those Findings were Based”.  That evidence comprised an assessment report and recommendations made by the Victorian Minister for Planning, a letter from the Victorian Minister for Planning written in July 2001 advising of the modification to the recommended route to the alignment, the Project Proposal Report submitted by VicRoads in March 2001 and the letter from the Federal Minister for the Environment and Heritage advising that the environmental assessment process had concluded.  Finally, there is the delegate’s “Reasons for Decision” which were that the variation “was warranted, that all Federal environmental requirements had been satisfied, and that funding was available.”  The applicants make the point (and at first glance it is a reasonable point in the circumstances), that the delegate has made no reference, whether direct or indirect, to s 30 of the Heritage Act nor to the matters which would ordinarily be taken into account by a decision-maker who had given adequate consideration to the requirements of s 30.  Consequently, the applicants say it should be concluded that s 30 was ignored or overlooked.

37                  In the end, however, I am satisfied that there is a good reason why there is no reference to s 30 in the delegate’s reasons.  The explanation is that the decision to which the reasons relate is a decision under s 27 of the Transport Development Act.  The reasons do no more than explain why the decision under s 27 was taken.  Having heard her evidence, which appeared to me to be forthright and honestly given, I am satisfied that the delegate was aware of the obligations imposed by s 30 of the Heritage Act and that she had regard to that section before she reached her decision. 

38                  In her evidence the delegate said this:

“I was aware of the exhaustive process by which all feasible and prudent alternatives had been considered and that the modified option Y alternative had been recommended by the Victorian Minister for Planning, Environment Australia and the Environment Minister.  I was aware that route selection had been the dominant issue throughout the decision-making process and that, save for the question of meeting the funding requirements within the [relevant Commonwealth program], the issue of which of the various prudent and feasible alternatives best satisfied the environmental and heritage sensitivities was the primary issue raised by the proposed project.

“I was satisfied on the basis of the detailed and extensive enquiries and evaluation undertaken by the Advisory Committee, the Working Party and the Committee, and the extensive public consultation that had occurred, that there was no prudent or feasible alternative to modified option Y.  I was confident, as the process had involved such extensive public consultation and formal enquiry, that the final recommendation had been made after a comprehensive evaluation of the merits of the alternative Options.”

39                  She was also cross-examined on the topic.  In her cross-examination she said that she was aware “that there was environmental or related legislation that had [the requirements of s 30].  It wasn’t just coincidental”.  She acknowledged that she did not directly refer to s 30 in her reasons.  She explained this was because “the project had received an assessment from the federal Minister for the Environment and Heritage goes to an awareness of matters on the National Estate, and environmental and route alignment issues go to the issue of feasible and prudent alternatives”.  She also said that she appreciated the existence of the s 30 requirement “through the whole lead-up to the decision”. 

40                  The delegate was, of course, correct in her statement that the process at both State and Federal level had involved consideration of the issue whether the realignment would conform to Commonwealth and State environmental and Heritage legislation.  The first Advisory Committee agreed to take into account Commonwealth responsibilities with respect to the grasslands listed on the Register of the National Estate and the project was designated under s 6 of the EPIP Act so that joint Commonwealth-State assessment of the project would occur.  The Commonwealth Minister for the Environment relied on, and participated fully in, the Victorian Environmental Assessment process by agreeing to a cooperative assessment arrangement that aimed to satisfy the requirements of the EPIP Act, as well as those of the Heritage Act and the ESP Act.  The Minister approved a series of variations to his original decision under s 27 of the Transport Development Act so that additional route alignment options could be considered.  Environment Australia continued to bring the Minister’s obligation under s 30 to the attention of the Advisory Committee, as is apparent from its submission of December 1998 to the Committee in response to the PAR prepared by the proponent, VicRoads.  After considering the report of the First Committee, the Victorian Minister for Planning was not satisfied that a better option than any of the original seven options investigated by the Committee might not be available.  The Minister therefore reconvened the Committee and specifically required it to enquire into the heritage effects of Options X, Y and Z, relative to Option 5, as well as any upgrade of the existing Hume Highway in terms of avoiding or minimising any impact on the grasslands.  Both the submissions of the Department of Transport and Environment Australia to the second Advisory Committee refer in their submissions to the obligation imposed by s 30.  This is also true of the assessment of the Advisory Committee’s proposal prepared by the Victorian Minister of Planning in January 2001, which was presented to the relevant decision-makers, namely the Victorian Minister for Transport, the Commonwealth Minister for the Environment and Heritage and the Commonwealth Minister for Transport and Regional Services.  Further, when the Commonwealth Minister for the Environment wrote to the Minister for Transport in August 2001, providing his own assessment of the proposal, he recommended that any decision should be subject to consultation with the Heritage Commission regarding the development of Environmental Management Plans.  That is to say consideration was given to the availability of feasible and prudent alternatives. 

41                  I proposed next to deal, out of order, with the allegation that the delegate failed to take into account the Russell report.  The report was an independent study to develop and cost a package of improvements to public transport, rail freight and road infrastructure along the existing Hume Highway as an alternative to the Craigieburn Bypass.  The report sets out a comprehensive series of recommendations which the applicants argue constitute a feasible and prudent alternative to constructing the realignment.  The report recommended upgrading the existing Hume Highway with the provision of service roads, increased bus services, rail electrification, extension of tram services and the encouragement of freight services. 

42                  The report was commissioned by the cities of Moreland, Darebin and Melbourne and the Metropolitan Transport Forum and released on 27 March 2001, just over a month after the Victorian government announced its decision in relation to its preferred freeway route, Option Y.  Consequently, the report was not considered by the Committees established to consider the proposed project.  The Transport Minister wrote to the Victorian Minister for Planning in September 2001 seeking Victoria’s assurance that it would give appropriate consideration to the Russell report and its proposed alternative to the planned realignment.  Whether the report was in fact taken into consideration by the Victorian government is not apparent.  It is clear, however, that if there was any such consideration, it occurred after the delegate had made her decision on 30 August 2001. 

43                  Nevertheless, the delegate took into consideration the Russell report notwithstanding its absence from the deliberative processes which had occurred at State level.  The delegate said that her Department, on its own initiative, obtained the Russell report in draft form in March 2001.  She said that she was aware that the report “recommended a set of integrated public transport measures as an alternative to a freeway for the Craigieburn project”.  That is, the delegate was aware of the Russell report recommendations.  She said that “the greatest concern that was expressed [by officers in the department] about the Russell report was that the assumptions made about the extent to which it would be possible and feasible to move freight from road to rail and particularly people from private vehicles to public transport, that those assumptions were not borne out by experience in Australia or overseas and were exaggerated”.  She also explained that officers in her Department examined the costings in the Russell report (around $200 million) and found that they were significantly underestimated and that the likely cost of the report’s preferred option was the “prohibitively expensive” sum of $800 million.

44                  The delegate said that many of the matters raised by the report were the responsibility of the Victorian government and outside the responsibility assumed by the Commonwealth government with respect to its funding of national highways.  This division of responsibilities, the delegate explained, had been a “consistent policy position adopted by the current Commonwealth Government” although, in principle, the Commonwealth does have the power to grant funding to cover the cost of transport infrastructure beyond highway construction.  (Later I will consider whether this approach amounts to a misconstruction of what is required to be taken into account by s 30).  The delegate recognised that the Minister (she meant herself as the Minister’s delegate) was obliged to take into account the availability of the options put forward by the Russell report regardless of whether or not they fell within Commonwealth areas of responsibility since a consideration of “feasible and prudent alternatives” extended beyond alternatives for which the Commonwealth government has chosen to accept responsibility. 

45                  In the light of this evidence, it is clear that the allegation that the delegate did not consider the Russell report is not made out.  Not only was the delegate aware of the report, she took it into account for the purpose of deciding whether there was any feasible and prudent alternative to modified option Y. 

46                  Having found that the delegate was aware of her obligations under s 30 of the Heritage Act and gave consideration to the issues raised by that section when making her decision under s 27, I can now consider the applicants’ claim that the delegate misconstrued or misapplied s 30.

47                  The first matter which requires resolution is how is s 30 to be construed.  One should begin by looking at the history of the section.  This history begins in the United States, another common law jurisdiction like our own but from which we surprisingly tend to take very little, whether from their legislators or their common law doctrines.

48                  In the 1960s there was a great public demand for environmental protection.  The demand came from the young, the so called “60s generation”, in high schools, colleges and universities across the United States.  This, according to Senator Jackson, was “a new kind of revolutionary movement … concerned with the integrity of man’s life support system – the human environment”:  115 Cong. Rec. 40, 417 (1969).  One response to this movement was the regulation of the environmental impact of public transportation projects.  In this regard, the United States Congress passed several statutes, one of which was the Department of Transportation Act 1966 (82 Stat 824, 49 USC § 1653(f)).  The Transportation Act includes a provision commonly referred to as “section 4(f)” which is still regarded as one of the strongest substantive environmental laws in existence in the United States:  B Miller, “Department of Transportation’s Section 4(f):  Paving the Way Towards Preservation” 36 American University Law Review 633 (1987) at 635.  Section 4(f) relevantly provides:

“The Secretary [of Transportation] shall not approve any program or project which requires the use of publicly owned land from a public park, recreation area or wildlife and waterfowl refuge of national, State or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State or local significance as so determined by such officials unless -

(1)               there is no feasible and prudent alternative to the use of such land; and

(2)               such program includes all possible planning to minimize harm to such park, recreation area, wildlife and waterfowl refuge, or historic site resulting from such use.”

49                  Section 4(f) applies whenever a federally-funded highway project will “use” public parkland or land from a privately or publicly owned historic site.  Hence, characterising a use of such land as a “use” under s 4(f) is a threshold requirement for the statute’s application.  Once the threshold requirement is satisfied, s 4(f) imposes an important substantive requirement upon the Department of Transport.  If a highway project uses protected land, the Secretary may approve the project only if there is no “feasible and prudent alternative” to the use of such land.  In addition to engaging in this “feasible and prudent alternative” inquiry, the highway planners must also demonstrate “all possible planning to minimize harm” to protected natural resources before the Secretary can approve the highway project. 

50                  The Supreme Court of the United States considered s 4(f) in Citizens to Preserve Overton Park Inc v Volpe 401 US 402 (1971), a decision which is best known for its establishment of standards of judicial review governing administrative action.  In that regard, the Supreme Court held that the reviewing court must conduct a substantial three-step inquiry.  First, the court must determine whether the decision-maker acted within the scope of his or her authority.  Second, the court must find that the decision-maker’s choice was not “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law”.  Third, the court must find that the decision-maker followed the necessary procedural requirements.  For present purposes, however, it is necessary only to consider the Supreme Court’s consideration of the meaning of a “feasible and prudent alternative” in s 4(f).  The respondent argued that this language afforded the Secretary a wide discretion to consider a number of factors, including the detriment to parklands, in reaching a decision.  The Supreme Court disagreed.  The opinion of the court was delivered by Marshall J.  He said that the words “no feasible and prudent alternative” required the Secretary to give “paramount importance” to protection of parkland, unless there were levels of cost or community disruption of “extraordinary magnitude”, or other “truly unusual” factors (at 412-13).  The word “feasible” meant, “as a matter of sound engineering it would not be feasible to build the highway along any other route” (at 411).  Interestingly, the word “prudent” was not interpreted to indicate that a balancing of competing interests should be undertaken such that the resulting destruction of parkland should be weighed against the cost of other routes, safety considerations, and other factors.  On the contrary, Marshall J observed (at 411-13):

“It is obvious that in most cases considerations of cost, directness of route, and community disruption will indicate that parkland should be used for highway construction whenever possible. … there will always be a smaller outlay required from the public purse when parklands is used since the public already owns the land. … And since people do not live or work in parks, if a highway is built on parkland no one will have to leave his home or give up his business.  Such factors are common to substantially all highway construction.  Thus, if Congress intended these factors to be on an equal footing with preservation of parkland there would have been no need for the statutes. 

Congress clearly did not intend that cost and disruption of the community were to be ignored by the Secretary.  But the very existence of the statutes indicates that protection of parkland was to be given paramount importance.  The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes.  If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.” [citations omitted]

51                  In other words, the cost, directness of route, and other such factors do not account for a more prudent alternative.  Rather, there must exist “truly unusual factors”, or the cost or community disruption resulting from alternative routes must have reached “extraordinary magnitudes” such that the alternatives present “unique problems”.  See also Stop H-3 Association v Dole 740 F2d 1442, 1451-52 (9^th Cir 1984), which held that an alternate route costing an additional $42m and requiring dislocation of one church, four businesses and thirty-one residences was a cost or community disruption of extraordinary magnitude); Louisiana Environmental Society Inc v Coleman 537 F2d 79, 87 n.6 (5^th Cir 1976) where the alternate route requiring the displacement of 377 families, 1508 persons, twenty-one businesses and two churches was not of extraordinary magnitude; Coalition for Responsible Regional Development v Brinegar 518 F2d 522, 526 (4^th Cir 1975) finding the State’s inability to finance an alternate route with proceeds from sale of bonds was not a unique problem); Association Concerned About Tomorrow Inc v Dole 610 FSupp, 1101, 1116-1117 (D.C. Tex 1985) finding alternate route requiring dislocation of elementary school not imprudent.  Other recent cases support the option of not undertaking the project at all:  for example DC Federation of Civic Associations v Volpe 459 F2d 1231, 1238-1239 (D.C. Cir 1971); Stop H-3 Association v Dole 740 F2d 1442, 1451-52 n.17 (9^th Cir 1984). 

52                  Section 4(f) came to be adopted in Australian legislation in the following way.  In April 1973, the Australian government set up a committee of inquiry under the chairmanship of Mr Justice Hope of the Supreme Court of New South Wales to report on the nature and condition of the National Estate and the ways in which government and non-government bodies could preserve and enhance it.  The report of the Hope Committee (as it was known) was delivered on 19 September 1974.  The Hope Report found (at 334) that:

“The Australian Government has inherited a National Estate, which has been downgraded, disregarded and neglected.  All previous priorities accepted at various levels of government and authority have been directed by a concept that uncontrolled development, economic growth, and ‘progress’, and the encouragement of private as against public interest in land use, use of waters, and indeed in every part of the National Estate, was paramount.” 

The Committee made many recommendations.  One recommendation (made at 239) was that Australian legislation, both State and Federal, should incorporate provisions similar to those found in American statutes “requiring all Australian Government agencies or departments to act so as to ensure the maximum possible conservation of items of the National Estate” (emphasis added).  An American statute specifically referred to was the Department of Transportation Act.  Section 4(f) was set out.  However, the model section suggested by the Hope Committee picked up aspects of s 4(f) as well as aspects of other relevant American statutes. 

53                  The government established an Interim Committee to advise on how the recommendations in the Hope Report should be implemented.  In due course, the Heritage Commission Bill 1975 (Cth) was presented to the House of Representatives.  The Bill did not contain the model clause suggested by the Hope Committee but rather a provision based directly on s 4(f).  On the second reading, the Minister for Urban and Regional Development said that one of the stated aims of the Bill was “to require that the Commonwealth government, its departments and agencies, and those acting on its behalf, respect the National Estate and do all that they can to preserve it”:  Australia, House of Representatives, Parliamentary Debates (Hansard), 14 May 1975, p 2244.  According to the Minister, the Bill required that “Ministers and Australian Government agencies look at the impact of their activities on the National Estate” and to proceed with public works programs “only after looking at alternatives, and planning to remove or to minimise any possible harm to a part of the National Estate”:  Australia, House of Representatives, Parliamentary Debates (Hansard), 14 May 1975, p 2245. 

54                  The object of s 30 of the Heritage Act was therefore to reverse the impact of government activities on Australia’s National Estate so that in the future Australia’s heritage would be given paramount consideration in government decision-making processes.  The section was designed to ensure that decision-makers are informed about the environmental consequences of their proposed actions and are made aware of feasible and prudent alternatives in order for them to be able to satisfy themselves that they have no effective choice but to take the proposed action.

55                  For reasons which are not altogether apparent this view of the legislation did not, at least initially, commend itself to the courts.  Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200 considered the validity of a seventeen year licence to export woodchip from forests in the National Estate Register.  The evidence indicated that 78 per cent of a particular State forest would be logged under the licence and there was no dispute that the National Estate would be adversely affected.  The court had available to it the documents which were before the Minister when he made his decision to grant the lease.  In only one document was there a reference to s 30 of the Heritage Act.  The document provided little information upon which a relevant state of satisfaction might be reached.  Indeed, the document suggested that there was no doubt as to the decision to be taken.  This notwithstanding, the judge, Davies J, said this was a sufficient reference to show that the point was raised for the Minister’s consideration.  As to the manner in which s 30 was to be considered Davies J said (at 209-210):

“ The question of what was a prudent and feasible alternative was a matter of value judgment and that judgment was reposed in this case in the Minister..… It was open to and indeed necessary for the Minister to take into account the economic interests of the timber industry.  It was relevant to take into account the views of the New South Wales Government and of the New South Wales Forestry Commission.  It was the Minister’s satisfaction as to the existence of any feasible and prudent alternative that mattered.  The evidence before the Court does not show that the Minister was not genuinely satisfied that there was no reasonable and prudent alternative to the [licence].”

56                  Plainly this reasoning falls far short of the test laid down by Overton Park.  According to Davies J, s 30 factors are no more than one set of the factors that must be taken into account along with any others that are relevant.  On the other hand, if s 30 was designed to ensure that protection of the National Estate was to be given a higher level of importance than other factors, as I believe it was, this objective was surely nullified by the reasoning of the judge. 

57                  To some extent, the position was retrieved in Yates Security Services Pty Ltd v Keating (1990) 98 ALR 21.  One issue in that case was the validity of a decision to revoke an earlier order made by the acting treasurer under the Foreign Acquisitions and Takeovers Act 1975 (Cth) prohibiting the acquisition of Paddy’s Market in Sydney for development.  Another issue concerned the effect of a transaction entered into without there being any adherence to s 30.  Paddy’s Market was of historical and architectural significance.  The trial judge (Wilcox J) found that the Minister’s decision was reached irregularly but, for reasons which are not presently relevant, allowed the acquisition to proceed.  One point dealt with was whether the decision was reached in contravention of s 30 of the Heritage Act.  On this aspect Wilcox J had a number of important things to say.  On s 30 generally he said (at 62):

“In my judgment, s 30 evinces an intention to ensure that actions by Commonwealth officers do not adversely affect places entered on the register of the national estate unless a positive conclusion is reached by the responsible Minister that such affectation is, in practical terms, inescapable and all reasonable minimisation measures are taken.  As I have already suggested, this objective is central to the statute, there being little point in compiling a register unless places entered on it are protected, at least from adverse Commonwealth actions.”

He went on to say (also at 62) that from this analysis it followed that s 30 “… is to be read as evincing a legislative intention to invalidate actions taken in contravention of its commands.”

58                  As regards the substantive obligation imposed by s 30, Wilcox J (at 57) said, first, that the Minister was under a duty to be satisfied that there was no reasonable and prudent alternative to the proposed action.  Later, (also at 57) he stated that:  “[i]f necessary, [the Minister] had to seek out and evaluate information on alternatives…”  After a review of the American cases, including, of course, Overton Park, Wilcox J said (at 58) that the words “feasible” and “prudent” where applied in their ordinary meaning, dictate that “a proposal ought not to be regarded as infeasible or imprudent simply because it is more costly or less profitable.” 

59                  The case went on appeal:  Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1.  The Full Court dealt with both the nature of the duty imposed by s 30 and the effect of its non-compliance.  As to the duty, both Lockhart  and Morling JJ expressed the view that s 30 imposed only a public duty and not a duty owed to any particular person or persons (at 12 per Lockhart J and 21 per Morling J).  To vindicate a public right, proceedings had to be brought by the Attorney-General either ex officio or on the relation of a private individual (at 12 per Lockhart J).  The other member of the court, Pincus J, dealt with the question whether a breach of s 30 could nullify a decision.  He said (at 25) first that “[l]ooking at s 30 broadly it seems to be a provision controlling, in important respects, the procedure to be adopted within the national government when dealing with matters involving the national estate.”  He went on to say (also at 25) that “[t]o read such a statute as invalidating things done in breach of it, lest the statute be ignored, appears to be a drastic means of fulfilling Parliament’s intentions.”  Pincus J then considered the construction of s 30 in more detail.  He said that the first part of s 30(1), which contemplated that the Minister will set up a system within his department to ensure that decisions are not taken which will adversely affect the National Estate unless there is no reasonable and prudent alternative, was not intended to lead to the invalidity of decisions if breached (at 26-27).  Building from this conclusion, a conclusion with which I do not disagree, Pincus J held that the same result should follow as regards a breach of the second obligation prescribed by s 30(1), namely the personal obligation imposed upon a Minister to ensure that the National Estate was not adversely affected unless he or she is satisfied there is no reasonable and prudent alternative to taking particular action.  Pincus J said (at 27) that this second part was probably intended not to be invalidating if the first was not:  “If the second part stood alone, the matter would be more arguable.  But even then, it would seem wrong to hold invalid (for example) a contract for restoration of an historic building if a court, differing from the departmental view, judges the aesthetic affect of the restoration to be plainly adverse.” 

60                  With great respect to the views of the judge, I do not agree.  In the first place, his reasoning does not answer the point made by Wilcox J, namely that to treat s 30 as merely instructive to the Minister would be to substantially thwart the intention of parliament.  Secondly, the reasoning pays no regard to the fact that when interpreting local legislation, it is often helpful to look at the enactments of other jurisdictions, especially legislation which forms the foundation of the local enactment.  Speaking generally, when two statutes dealing with the same subject are enacted to achieve the same purpose, and use similar or identical words, the court may readily conclude that the words have the same meaning and effect.  All the more so when one statute is taken from another jurisdiction in which the statute has received an interpretation which plainly accords with its objective.  In any event, the point that Pincus J makes about the potential for holding a Ministerial act invalid because a judge may have a different view about the effect of that act, would not arise.  The reason it would not arise is because in judicial review the judge is not called upon to evaluate the merits of the decision in question. 

61                  The applicants say that the Russell report provides evidence of a feasible and prudent alternative that was not taken into proper account by the delegate when making her decision because of a misconstruction or misapplication of the phrase “feasible and prudent”.  The alleged misconstruction is based on a perceived failure by the delegate to consider alternatives that did not fall within government policy.  That is, while the delegate may have had regard to the Russell report, she did not take into account those recommendations which did not fall within the assumed responsibility of the Federal government according to the government policy of the day.  For instance, in addition to upgrading the Highway, the Russell report recommended electrification of the suburban rail line, reform to the bus and tram services, investment in the standardisation of rail freight, a container port connection and a Sydney-Melbourne rail upgrade.  These are matters which the delegate said were the responsibility of the State and not the Commonwealth government. 

62                  On this aspect, it is as well to consider the application of s 30 in two stages:  first, as it was applied during the course of the investigation process before the delegate took her decision; and, second, as it was applied by the delegate herself.  The process approach can be found in the Assessment Report prepared by the Victorian Minister for Planning in January 2001, which was sent to the Victorian Minister for Transport, the Commonwealth Minister for the Environment and Heritage, the Commonwealth Minister for Transport and Regional Services, and the City Councils of Hume and Whittlesea.  In that report, the Victorian Minister refers to the report of each Advisory Committee and notes that his assessment of those reports did not rely upon the same evaluation matrix as that used by the two Committees.  His reasons for not choosing the same model of evaluation is explained:

§         “I agree with the Committee that it is necessary to consider what performance criteria emerge from relevant legislation and policies and that these must constitute the primary basis for evaluation.  However, judgment also needs to be exercised regarding the particular relevance of this legislation and policies to the case in question.  This depends in large measure on the particular circumstances of existing land use and settlement, development opportunities and environmental sensitivities involved.  The particular values of Merri Creek and the adjoining grasslands and woodlands, as well as the strategic importance of the Hume Highway corridor, are central considerations here.

§         Some criteria will represent basic requirements of acceptability while others will guide relative preferences.  For example, the attainment of high standards of road performance is a basic requirement for this road link, while the protection of both ecological values of National significance and areas of high Aboriginal heritage value are basic environmental requirements.  Economic impacts, including both the direct costs and benefits of the road and impacts on other land uses or activities, as well as impacts on environmental values of local significance, represent relative values.  Any comparative assessment of project options should take account of these differences in the type of value involved.  A stepwise approach to the application of performance criteria may therefore be appropriate, first by applying ‘basic requirement’ criteria and then ‘relative preference’ criteria.  The ‘basic requirements’ can be applied to eliminate options that fail to meet these criteria—unless suitable mitigating or offsetting measures are available. 

      …

§         One other issue raised by the Advisory Committee that warrants comment is the identification of ‘prudent and feasible alternatives’, in accordance with the requirements of the Environment Protection (Impact of Proposals) Act1974 and the Australian Heritage Commission Act 1975.  For the purpose of this Assessment, I regard:

o       ‘Feasible’ as relating to the technical practicability and cost-effectiveness, and

o       ‘Prudent’ as relating to the economic benefits and environmental and social merits,

of a particular option to achieve a purpose.  The proposal for which specific alternatives are being considered is the generic proposal that a freeway standard link be developed between Craigieburn and the Western Ring Road.”  (emphasis added)

63                  This statement gives clear and correct guidance to those who later assessed each of the alternate proposed alignments by reference to s 30 of the Heritage Act.  In making that assessment, protection of the ecological values of the National Estate were to be considered basic requirements, and were to be used to eliminate other options.  Moreover, it is clear that the requirements of s 30 were adhered to in the assessment process in a manner that gave paramount importance to the protection of the grasslands registered on the National Estate.  No proposal which would cause harm to the grasslands would be accepted unless there were reasons of technical impracticability and cost or extraordinary economic hardship or environmental and social disadvantage in providing such protection.   

64                  When one looks at whether the delegate properly took into account the contents of the Russell report in determining whether s 30 was satisfied, the evidence suggests that she did.  I have already mentioned that staff in the delegate’s department obtained a copy of the report and noted that it recommended a set of integrated public transport measures as an alternative to a freeway.  The delegate was aware of the nature of those measures which included the provision of service roads, increased Craigieburn bus services, rail electrification of the Broadmeadows and Upfield lines to Craigieburn, an extension of tram services and the encouragement of freight services.  The delegate formed the view that many of these matters were the responsibility of the Victorian government.  Nevertheless she decided, on the strength of departmental advice, that the Russell report’s estimated cost of $200 million was unrealistic.  Her advice was that the measures would cost around $800 million.  Further, according to the delegate, the assumptions upon which the Russell report was based, in particular the assumptions about the increased use of public transport, were contrary to the advice received from the Victorian government.  In the end, the delegate “took the view that the proposal for an upgrade of the Hume Highway in the context of the total package of measures proposed by the Russell report [did not require further action as] the Russell report did not provide a feasible and prudent alternative to modified Option Y.”  Whether a fair assessment or not (and I am by no means satisfied that it is an unfair assessment), it is clear that the delegate had complied with the duty imposed by s 30. 

65                  It follows that the application for review should be dismissed.  In the circumstances, however, I will not adopt the usual course of ordering costs to follow the event.  Principally, I am influenced by the fact that this piece of litigation came about because the delegate’s reasons suggested that there had been a failure to have regard to s 30.  The applicants were entitled to begin this action in the belief that there was a deficiency in the decision-making process.  Indeed, it was not until shortly before the hearing when the delegate filed two supplementary affidavits that the applicants’ seemingly strong position began to look doubtful.  In these circumstances, it would not be reasonable to impose a costs order upon the applicants.  It is best to let the costs lie where they fall. 

Associate:

Dated:              4 July 2003