FEDERAL COURT OF AUSTRALIA
Bob Brown Foundation Inc v Minister for the Environment [2022] FCA 498
ORDERS
Applicant | ||
AND: | First Respondent MMG AUSTRALIA LIMITED Second Respondent | |
DATE OF ORDER: |
THE COURT NOTES THAT: the second respondent has by its counsel given the following undertaking:
Subject to the final determination of the proceeding, or further order, in undertaking the Preliminary Design and Assessment Works, MMG Australia Limited (MMG) undertakes to implement the following measures in relation to the Masked Owl:
1. Suitable Masked Owl nesting habitat trees will not be disturbed and a 15 metre exclusion zone applied;
2. A suitable Masked Owl habitat tree is the following:
(a) a tree with a diameter greater than 1 metre at breast height; or
(b) a tree with a hollow entrance of 15 cm or greater.
3. Surveys for suitable Masked Owl habitat trees to occur in the areas where the Preliminary Design and Assessment Works are to be undertaken.
4. Where MMG is unable to determine whether a potential hollow entrance is 15 cm or greater, MMG will obtain the advice of a suitably qualified expert in tree hollows to confirm whether the hollow is 15 cm or greater. Until verification, the tree will be avoided by the application of an exclusion zone with the tree and the associated exclusion zone marked with identifying tape.
5. The exclusion zone will be centred on the suitable Masked Owl habitat tree and extend by a 15 metre radius.
6. No works the subject of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), referral 2021/9079 to occur in the exclusion zone.
7. Suitable Marked Owl habitat trees and their associated exclusion zones to be marked with tape, photographed and GPS coordinates recorded.
8. Maps will be produced of the Suitable Masked Owl habitat trees and their associated exclusion zones and provided to contractors and employees in conducting the Preliminary Design and Assessment Works.
THE COURT ORDERS THAT:
1. The applicant have leave to amend the originating application for judicial review to the form provided to the Court on 29 April 2022.
2. The applicant file and serve the amended originating application for judicial review by 4.00 pm on 4 May 2022.
3. The applicant’s application for an interlocutory injunction (contained in its originating application) be dismissed.
4. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MOSHINSKY J:
Introduction
1 The applicant, Bob Brown Foundation Inc, has applied for an interlocutory injunction to restrain the second respondent, MMG Australia Ltd (MMG), from carrying out certain preliminary design and assessment works in connection with a proposed tailings storage facility (TSF) at South Marionoak, near Rosebery in western Tasmania.
2 The relevant works are described in a referral by MMG under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) dated 19 October 2021, being referral 2021/9079 (the Referral). The title of the proposal is “Design and Assessment Works – South Marionoak Tailings Storage Facility Rosebery, Tasmania”. The Referral states that “[t]he proposed action involves geotechnical works and investigation activities and ancillary activities to enable access (eg development of tracks, vegetation removal). These geotechnical works and investigation activities are required to inform the design and assessment of a proposed tailings storage facility (TSF) at South Marionoak, near Rosebery in western Tasmania”. The proposed action described in the Referral is referred to as the “Preliminary Design and Assessment Works” in MMG’s submissions.
3 On 6 January 2022, a delegate of the first respondent, the Minister for the Environment (the Minister), decided that the proposed action described in the Referral was not a “controlled action” for the purposes of the EPBC Act provided that it was undertaken in a particular manner as set out in the decision notice (the Decision). The Decision was expressed as having been made under ss 75 and 77A of the EPBC Act. While the Decision stipulated specific measures to protect certain threatened species and ecological communities, significantly for present purposes the Decision did not prescribe any specific measures to protect the Tasmanian Masked Owl.
4 On 4 March 2022, the applicant commenced the present proceeding. The applicant seeks judicial review of the Decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The applicant relies on three grounds of review, which are set out later in these reasons. The hearing of the proceeding has been listed to commence on 19 July 2022, on an estimate of two days.
5 The applicant’s application for an interlocutory injunction is contained in its originating application for judicial review. The applicant seeks an order under s 23 of the Federal Court of Australia Act 1976 (Cth) or s 475(5) of the EPBC Act that MMG refrain from taking the proposed action (being the proposed action set out in the Referral) until such time as the Court determines the originating application.
6 The applicant relies on the following evidence in support of the application for an interlocutory injunction:
(a) two affidavits of Roland Browne, a partner of Fitzgerald and Browne, the solicitors acting for the applicant, dated 13 April 2022 and 27 April 2022;
(b) an affidavit of Steven Chaffer, the Chief Executive Officer of the applicant, dated 13 April 2022;
(c) an affidavit of Kasey McNamara, a campaign scientist, dated 13 April 2022;
(d) two affidavits of Charley Gros, a scientist and PhD candidate, dated 11 April 2022 and 27 April 2022;
(e) two affidavits of Dr Matthew Webb, an environmental consultant, dated 14 April 2022 and 27 April 2022; and
(f) an affidavit of Robert Blakers, a photographer, dated 27 April 2022.
7 MMG relies on the following evidence in opposition to the application for an interlocutory injunction:
(a) two affidavits of Stephen Scott, the General Manager at the Rosebery Mine, which is operated by MMG, dated 22 April 2022 and 28 April 2022; and
(b) an affidavit of Adam Pandelis, the Environment and Community Superintendent at the Rosebery Mine, dated 22 April 2022.
8 MMG also relies on an article by David Young, Phil Bell and Nick Mooney titled “Home-range, habitat use and diet of the Tasmanian Masked Owl Tyto novaehollandiae castanops”, published in Australian Field Ornithology in 2020.
9 The Minister did not file any evidence in relation to the application for an interlocutory injunction, and did not make submissions in relation to the application.
10 There was no cross-examination of any of the deponents.
11 It is convenient to note that the evidence before the Court relates to the issues that are relevant for the application for an interlocutory injunction. It may be that some of this evidence is not relevant for the purposes of the final hearing, which is an application for judicial review. Further, any findings in these reasons are made for the purposes of the application for an interlocutory injunction. The evidence before the Court at the final hearing may well be different and, accordingly, the findings may not be the same.
12 The applicant has offered to give the usual undertaking as to damages.
13 In the course of the hearing, and in response to questions from the Court, MMG’s senior counsel obtained instructions to offer an undertaking to the Court reflecting the proposed method of carrying out the works described in paragraph 32 of Mr Pandelis’s affidavit. The proposed undertaking is expressed in more precise terms than the description in paragraph 32 of the affidavit. The proposed undertaking by MMG is as follows:
Subject to the final determination of the proceeding, or further order, in undertaking the Preliminary Design and Assessment Works, MMG Australia Limited (MMG) undertakes to implement the following measures in relation to the Masked Owl:
1. Suitable Masked Owl nesting habitat trees will not be disturbed and a 15 metre exclusion zone applied;
2. A suitable Masked Owl habitat tree is the following:
(a) a tree with a diameter greater than 1 metre at breast height; or
(b) a tree with a hollow entrance of 15 cm or greater.
3. Surveys for suitable Masked Owl habitat trees to occur in the areas where the Preliminary Design and Assessment Works are to be undertaken.
4. Where MMG is unable to determine whether a potential hollow entrance is 15 cm or greater, MMG will obtain the advice of a suitably qualified expert in tree hollows to confirm whether the hollow is 15 cm or greater. Until verification, the tree will be avoided by the application of an exclusion zone with the tree and the associated exclusion zone marked with identifying tape.
5. The exclusion zone will be centred on the suitable Masked Owl habitat tree and extend by a 15 metre radius.
6. No works the subject of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), referral 2021/9079 to occur in the exclusion zone.
7. Suitable Marked Owl habitat trees and their associated exclusion zones to be marked with tape, photographed and GPS coordinates recorded.
8. Maps will be produced of the Suitable Masked Owl habitat trees and their associated exclusion zones and provided to contractors and employees in conducting the Preliminary Design and Assessment Works.
Background to the proceeding
14 The following matters are noted by way of background to the proceeding.
15 On 10 May 2021, MMG referred to the Minister under s 68 of the EPBC Act certain proposed action (referral 2021/8909). The title of the proposal was “South Marionoak Tailings Storage Facility, Rosebery, Tasmania”. The referral stated that “[t]he proposed action is the construction and operation of a new Tailings Storage Facility (TSF) at South Marionoak (SMO) in proximity to Rosebery, Tasmania within the West Coast municipality (South Marionoak TSF). The South Marionoak TSF will form part of the MMG Rosebery mine operations and will allow for piping and disposal of tailings resulting from the processing plant”.
16 On 12 July 2021, a delegate of the Minister decided that the proposed action described in referral 2021/8909 was a “controlled action” for the purposes of the EPBC Act. Accordingly, as stated in the decision, the project required assessment and approval under the EPBC Act before it could proceed.
17 On 6 September 2021, MMG made a request under s 156A of the EPBC Act that the Minister accept a variation of the action proposed in referral 2021/8909. In substance, by that request, MMG requested the Minister to remove from the scope of the referral, preliminary works and activities which MMG said were necessary to facilitate the assessment of the proposed action required by the delegate’s 12 July 2021 decision.
18 On 9 September 2021, the delegate approved that request under s 156B of the EPBC Act.
19 On 19 October 2021, MMG made the Referral (pp 126 to 150 of Mr Browne’s first affidavit). The Referral included, in Section 2, a discussion of certain potentially threatened species and ecological communities. This included a discussion of the Tasmanian Masked Owl (at p 133 of Mr Browne’s first affidavit). In Section 4 of the Referral, certain measures were proposed to avoid or reduce impacts. In relation to the Tasmanian Masked Owl, the following measures were proposed (see p 138 of Mr Browne’s first affidavit):
• Impacts to eucalypt trees >1 m diameter at breast height or trees with hollow entrances >15 cm) must be avoided, including any direct clearing or felling of such trees or their root protection zones
• No vegetation clearance or ground disturbance will occur within 15 m of a masked owl habitat tree
20 On 6 January 2022, the delegate of the Minister made the Decision (pp 214 to 234 of Mr Browne’s first affidavit). As already noted, the delegate decided that the proposed action described in the Referral was not a “controlled action” if it was undertaken in a particular manner. The decision notice contains a description of measures that are required to be undertaken to avoid significant impacts on listed threatened species and ecological communities. These measures are set out under the following headings:
(a) Measures to protect EPBC Act listed threatened species and ecological communities;
(b) Measures to protect the Tasmanian Wedge-tailed Eagle;
(c) Measures to protect Tasmanian Forests and Woodlands dominated by black gum or Brookers gum;
(d) Measures to protect the Tasmanian Devil; and
(e) Measures to protect Scrambling Ground-fern.
21 The measures set out under (a) are general, in the sense that they are not directed to a particular threatened species. These general measures include that the total area cleared for the action must not exceed 14.83 hectares.
22 As already noted, the Decision did not require any specific measures to be taken to protect the Tasmanian Masked Owl.
23 On 7 February 2022, the delegate provided reasons for the Decision (the Reasons) (pp 236 to 264 of Mr Browne’s first affidavit). The Reasons outline the background to the Decision at paragraphs 2 to 24. In particular, in paragraph 3, the proposed action is described. The action includes the construction of approximately 15.3 km of new access tracks, up to 6 metres wide. At paragraph 25 of the Reasons, the evidence or other material on which the findings were based is set out. In the course of the hearing of the present interlocutory application, in response to a question from the Court, senior counsel for the applicant said that the evidence relating to the Tasmanian Masked Owl that was before the delegate was less extensive than the evidence currently before the Court for the purposes of the interlocutory application.
24 After setting out a summary of comments received from the public, from Commonwealth Ministers and from State or Territory Ministers, the Reasons contain findings on material questions of fact, at paragraphs 33 to 264.
25 At paragraph 41, the delegate stated that while she considered the proposed action to be a component of a larger action, she decided not to exercise the discretion in s 74A(1) of the EPBC Act (not to accept the referral of the proposed action).
26 At paragraphs 42 to 45 of the Reasons, the delegate referred to ss 75 and 77A of the EPBC Act. As the delegate noted, s 75(1) provides that the Minister must decide whether the proposed action is a controlled action, and which provisions of Pt 3 (if any) are controlling provisions for the action. Section 77A provides that if, in deciding whether the action is a controlled action or not, the Minister has made a decision that a particular provision of Pt 3 is not a controlling provision for the action because the Minister believes it will be taken in a particular manner, the notice, to be provided under s 77, must set out the component decision, identifying the provision and the manner.
27 At paragraphs 46 to 50 of the Reasons, the delegate discussed listed threatened species and ecological communities. In paragraph 49, the delegate accepted and agreed with the Department’s advice that there was a likelihood of impacts to the following listed threatened ecological community and listed threatened species: Wedge-tailed Eagle (Tasmanian) (endangered); Tasmanian Forests and Woodlands dominated by black gum or Brookers gum (critically endangered); Tasmanian Devil (endangered); and Scrambling Ground-fern (endangered). In relation to the Tasmanian Masked Owl, the delegate noted at paragraph 50 that, based on the scale, nature and location of the proposed action and likely habitat present in the area of the proposed action, the department advised that impacts to the Tasmanian Masked Owl “potentially may arise”. I note that the Tasmanian Masked Owl is a listed threatened species, and is vulnerable.
28 The delegate then considered each listed threatened species and ecological community in detail. The delegate considered the Tasmanian Wedge-tailed Eagle (at paragraphs 51 to 75), the Tasmanian Forests and Woodlands dominated by black gum or Brookers gum (at paragraphs 76 to 124), the Tasmanian Devil (at paragraphs 125 to 160) and the Scrambling Ground-fern (at paragraphs 161 to 176). With respect to each of these threatened species or ecological community, the delegate concluded that the proposed action is not likely to significantly impact the listed threatened species or ecological community provided the action is undertaken in the particular manner set out in the decision notice.
29 The delegate considered the Tasmanian Masked Owl at paragraphs 177 to 196 of the Reasons. This part of the Reasons is very important for the purposes of the proceeding. I therefore set it out in full:
Tasmanian Masked Owl (Tyto [novaehollandiae] castanops) – vulnerable
177. I noted that the Tasmanian Masked Owl is a large owl that occurs throughout mainland Tasmania, and that the species inhabits a range of forests and woodlands, generally favouring habitats with a relatively open understorey, and is dependent on large hollow-bearing trees to breed.
178. The November Flora and Fauna Habitat Assessment details several hollow-bearing trees that may be suitable nesting habitat for Tasmanian Masked Owl have been identified in the proposed action area.
179. Song meters were used to survey for this species in the proposed action area in September-October 2020 and again in July-September 2021, and Tasmanian Masked Owl vocalisations were detected on 14 and 17 July 2021.
180. I noted that this species is elusive, and that further survey effort would be needed to understand the species’ usage of the site.
181. A study titled Home-range, habitat use and diet of the Tasmanian Masked Owl Tyto novaehollandiae castanops, published in Australia Field Ornithology in 2020, found that two individuals of this species elsewhere in Tasmania occupied home ranges over 1800 ha, with a core home range of more than 150 ha, indicating that Tasmanian Masked Owl present within the proposed action area would likely utilise habitat in the surrounding landscape as well as the proposed action area.
182. I noted that that study was conducted in a more fragmented agricultural landscape than the proposed action area.
183. Based on the information available to me, I considered that the Tasmanian Masked Owl may utilise the site for foraging and for breeding.
184. The Approved Conservation Advice for Tyto novaehollandiae castanops (Tasmanian Masked Owl) (2010) details that threats to the Tasmanian Masked Owl include habitat clearing and fragmentation from agriculture, forestry, and residential development, loss of nesting habitat through tree dieback, collision mortality and secondary poisoning.
185. The Approved Conservation Advice for Tyto novaehollandiae castanops (Tasmanian Masked Owl) (2010) does not describe important populations for this species.
186. I considered that the scale of the clearing and wide area across which the impacts are distributed, large home range of this species, and surrounding available habitat meant that vegetation clearance is unlikely to substantially reduce habitat available to the local population, and is therefore unlikely to cause a decrease the size of, or reduce the area of occupancy of, the local population.
187. I noted that disturbance of an active breeding hollow resulting in a failed breeding attempt may impact the local population of Tasmanian Masked Owl, however, further considered that it is unlikely these impacts will affect the population over the long-term, considering the impact is not persistent and the large areas of similar habitat present in the surrounding landscape that will likely provide similar breeding opportunities.
188. Further, I noted the likelihood that an active nest within the larger 240 ha site will occur within the 14.83 ha of proposed vegetation clearance is low.
189. Therefore, on the basis of the information available to me, I considered that significant impact as a result of disturbance to an active breeding hollow is unlikely.
190. The referral states in undertaking the action, impacts to eucalypt trees >1 m diameter at breast height or trees with hollow entrances >15 cm) must be avoided, including any direct clearing or felling of such trees or their root protection zones, and that no vegetation clearance or ground disturbance will occur within 15 m of a Masked Owl habitat tree.
191. I considered that this measure will likely be adequate to protect any potential breeding trees.
192. However, I further considered that the proposed action is unlikely to significantly impact Tasmanian Masked Owl regardless of this measure, and that therefore this measure should not be a requirement.
193. Public comments cited personal experience that the Tasmanian Masked Owl has been regularly heard in the proposed action area, and that, contrary to the referral documentation, an abundance of suitable prey is present on site.
194. I have taken account of the fact there is limited information available regarding this species’ usage of the site and have taken a conservative approach to ensure impacts have been appropriately considered.
195. I noted a document titled Tree Hollows in Tasmania – A Guide prepared by the Tasmanian Forest Practices Authority was submitted attached to a public comment.
196. In consideration of the nature of the proposed action and its impacts, and the habits of the Tasmanian Masked Owl, the department advised, and I agreed, that a significant impact to the Tasmanian Masked Owl was unlikely.
30 The study referred to in paragraph 181 of the Reasons is the article by Young and others referred to earlier in these reasons.
31 The applicant notes, in particular, paragraph 183 of the Reasons, in which the delegate found that the Tasmanian Masked Owl “may utilise the site for foraging and for breeding”.
32 At paragraphs 212 to 215, the delegate discussed the particular manner in which the proposed action would be carried out. In particular, at paragraph 213, the delegate referred to the general measures stipulated in the decision notice.
33 At paragraphs 260 to 262, the delegate referred to the “precautionary principle”, being the principle set out in s 391 of the EPBC Act. The delegate stated:
260. Under sections 3A(b) and 391(2) of the EPBC Act, I must take into account the precautionary principle in making a decision on whether an action was a controlled action.
261. The precautionary principle provides that lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation where there are threats of serious or irreversible environmental damage.
262. In making my decision I took account of the precautionary principle as required by sections 3A(b) and 391 (2) of the EPBC Act.
Overview of the proceeding
34 I now provide an overview of the proceeding.
35 The proceeding was commenced with the filing of an originating application for judicial review. At the hearing of the application for an interlocutory injunction, the applicant sought and was granted leave to amend the originating application to add an additional paragraph to the prayer for final relief. The application for leave to amend was not opposed.
36 The applicant relies on three grounds, which may be summarised as follows:
(a) In making the Decision, the delegate:
(i) made a decision that was not authorised by the EPBC Act;
(ii) failed to take a relevant consideration into account in the exercise of the power; and/or
(iii) erred in law,
in that she failed to comply with her obligation under s 391(1) of the EPBC Act to take account of the precautionary principle in making her decision under s 75 of the EPBC Act (ground 1).
(b) Further, or alternatively to ground 1, the exercise of the power under s 75 by the delegate was so unreasonable that no reasonable person could have so exercised the power in that:
(i) there was no basis in the materials before the delegate upon which she could reasonably conclude that the Tasmanian Masked Owl was not likely to be significantly impacted by the proposed action;
(ii) further or alternatively, the delegate failed to apply the precautionary principle in deciding whether the proposed action was likely to have a significant impact on the Tasmanian Masked Owl,
(ground 2).
(c) In the alternative to grounds 1 and 2, in making the decision, the delegate erred in law in that the delegate failed to comply with her obligations under s 77A(1) of the EPBC Act to identify:
(i) the “component decision”; and
(ii) the particular manner in which she believed the action would be taken,
(ground 3).
Applicable principles
37 Section 475(1) of the EPBC Act provides for a regime under which an “interested person” may apply to this Court for an injunction if another person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of the EPBC Act or the Environment Protection and Biodiversity Conservation Regulations 1999 (Cth).
38 Section 475(2) provides that such an injunction may operate to restrain the person from engaging in the conduct.
39 Section 475(5) provides that the Court, before deciding an application for an injunction, may grant an interim injunction, including an interim injunction which restrains a person from engaging in conduct.
40 I accept that the applicant is an interested person, pursuant to s 475(7) of the EPBC Act, because, during the two years preceding the originating application:
(a) the applicant’s objects or purposes included the protection or conservation of, or research into, the environment; and
(b) the applicant engaged in a series of activities related to the protection or conservation of, or research into, the environment.
41 Section 479 of the EPBC Act provides that the Court may grant an injunction irrespective of certain considerations (including whether or not there is a significant risk of injury or damage to human beings or the environment if the person engages, or continues to engage, in conduct of the kind sought to be restrained). However, save for the exclusion of certain considerations in s 479, the EPBC Act is otherwise silent as to the principles that govern the consideration of an application for an injunction.
42 Both parties proceeded on the basis that the ordinary principles that govern interlocutory injunction applications are apposite in assessing an interlocutory injunction application under the EPBC Act.
43 Those principles are not controversial. They were set out by the Full Court in Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 (Samsung) at [44]-[74] per Dowsett, Foster and Yates JJ, and in GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd (2013) 305 ALR 363 (GSK) at [81] per Bennett, Jagot and Griffiths JJ. An applicant must establish that:
(a) there is a prima facie case or a serious question to be tried, in the sense that there is a probability that at trial the applicant will be held entitled to final relief; and
(b) the balance of convenience favours the grant of the injunction, in the sense that the inconvenience or injury which the applicant would suffer if the injunction were refused must outweigh the inconvenience or injury the respondent would suffer if the injunction were granted.
See Samsung at [55] by reference to Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 (Beecham) at 622-623 per Kitto, Taylor, Menzies and Owen JJ. See also Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 (O’Neill) at [19] per Gleeson CJ and Crennan J, [65]-[72] per Gummow and Hayne JJ.
44 I note, in particular, the following additional relevant principles:
(a) The requirement to establish a prima facie case does not mean that the applicant must show that it is more probable than not that it will succeed at the trial. It is sufficient to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: O’Neill at [65] per Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J relevantly agreed at [19].
(b) The “balance of convenience” consideration requires an assessment of whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Beecham at 623.
(c) The strength of the applicant’s case is not considered in isolation from the balance of convenience: Samsung at [67]. In considering where the lower risk of injustice lies, all relevant factors are to be weighed in the balance. The strength of the applicant’s case and their chances of success may be a relevant matter when assessing the balance of convenience.
Consideration
45 I start by addressing whether or not there is a prima facie case.
46 In my view, the applicant has established a prima facie case or a serious question to be tried. Each of the grounds relied on by the applicant is, at least, arguable. In oral submissions, senior counsel for MMG accepted that the applicant has established a prima facie case.
47 In the circumstances of this case, it is difficult to assess the strength of the prima facie case. While the precautionary principle has been considered in the context of other legislation, it has received only limited consideration in the context of the EPBC Act. This makes it difficult to form a preliminary view as to the strength of ground 1 and the second limb of ground 2. Insofar as the first limb of ground 2 is concerned, without a detailed examination of the material that was before the delegate, it is difficult to form a view as to the strength of this contention. In the context of the application for an interlocutory injunction, it was not feasible to, and the parties did not attempt to, undertake this kind of detailed examination.
48 In relation to ground 3, the applicant’s senior counsel relied on the applicant’s written submissions. At first blush, the Reasons do appear to identify the matters referred to in this ground (see, in particular, paragraphs 33 to 41 and 212 to 215 of the Reasons). This ground does not, therefore, appear to be strong. Nevertheless, I accept that it is arguable.
49 I will now address the balance of convenience. In doing so, I have regard to the discussion above regarding the strength of the prima facie case.
50 The applicant contends, in broad outline, that MMG’s proposed action is likely to have a significant impact on the Tasmanian Masked Owl. The applicant submits that this is the case even if MMG adopts the measures proposed in the Referral or the more extensive measures it proposes now (in the context of the application for an interlocutory injunction). The applicant submits that the injunction is necessary to preserve the status quo, namely, that no part of the proposed action is taken: see Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; 160 LGERA 1 at [34]-[35] per Preston J. The applicant submits that, if the proposed action proceeds, the central plank of the relief sought by the applicant in this proceeding would be rendered nugatory. The applicant submits that there is little value in remitter or a permanent injunction if the significant impact to the Tasmanian Masked Owl has already materialised as a result of the proposed action having been undertaken.
51 MMG submits, in broad outline, that a delay in undertaking the preliminary design and assessment works will delay the process of seeking to obtain the necessary regulatory approvals (including approval under the EPBC Act) for the TSF project. MMG submits that there are two relevant timing imperatives: the first is that the existing TSFs are approaching their currently approved limit, which is estimated to occur at the end of 2024; the second is that the preliminary design and assessment works have already been delayed and there will be further anticipated delays as seasonal conditions place significant constraints around the timing of the preliminary design and assessment works.
52 The applicant has filed detailed expert evidence relating to the potential impact of the proposed action on the Tasmanian Masked Owl. This comprises, in particular, the evidence of Dr Webb, which relies on the studies that are the subject of the affidavit evidence of Ms McNamara and Mr Gros. In circumstances where Dr Webb was not cross-examined, and there is no contrary expert evidence, I accept Dr Webb’s evidence for present purposes. By way of brief summary, Dr Webb expresses the following opinions:
(a) Given the high detection rate identified in the reports prepared by Mr Gros, and the high likelihood that Tasmanian Masked Owls breed and nest on the site, the proposed action is extremely likely to have a significant impact on the Tasmanian Masked Owl (Dr Webb’s first affidavit, paragraph 35).
(b) In Dr Webb’s opinion, the measures proposed by MMG in the Referral would not be sufficient to avoid “significant impact” to the Tasmanian Masked Owl (Dr Webb’s first affidavit, paragraph 38).
(c) The measures now proposed by MMG as outlined in paragraph 32 of Mr Pandelis’s affidavit (which go beyond those proposed by MMG in the Referral) do not reflect an adequate understanding of the ecology and conservation of the Tasmanian Masked Owl, and reflect the previously inadequate assessments of its presence and importance at the site (Dr Webb’s second affidavit).
53 In addition to Dr Webb’ evidence, the applicant relies on the photographic evidence in Mr Blakers’s affidavit (combined with the evidence in Mr Gros’s second affidavit). The applicant also relies on the emails from Dr Phil Bell and Professor Brendan Wintle, which appear at pp 307 to 310 of Mr Browne’s first affidavit.
54 MMG has filed evidence regarding the timing and circumstances of the preliminary design and assessment works, in the context of the broader TSF project. This evidence (being the two affidavits of Mr Scott and the affidavit of Mr Pandelis) was not challenged and I accept it for present purposes.
55 While I accept, for present purposes, the expert evidence relied on by the applicant, the difficulty I have with the applicant’s submissions is that, even if the applicant is successful at the final hearing of this proceeding, it does not follow that the proposed action will not proceed. If the applicant succeeds in its application for judicial review of the Decision, the likely relief would be that the Decision is set aside and the matter remitted to the Minister. While it is possible that in that event the Minister may determine that the proposed action is a “controlled action”, another possibility is that the Minister makes a decision that the proposed action is not a controlled action provided it is undertaken in a particular manner, and specifies measures to protect the Tasmanian Masked Owl of the kind proposed by MMG in the Referral or now proposed by MMG. Given the approach taken by the delegate to the other listed threatened species or ecological communities (namely, the Tasmanian Wedge-tailed Eagle, the Tasmanian Forests and Woodlands dominated by black gum or Brookers gum, the Tasmanian Devil and Scrambling Ground-fern), this latter possibility seems more likely.
56 In other words, if the matter were remitted to the Minister, I consider there to be some prospect that, with further evidence about the potential impact of the proposed action on the Tasmanian Masked Owl, the Minister would treat the Tasmanian Masked Owl in a comparable way to the Tasmanian Wedge-tailed Eagle and the other listed threatened species or ecological communities referred to above. There does not appear to be a sufficient prospect that the Minister would decide that the proposed action is a controlled action due to the potential impact on the Tasmanian Masked Owl.
57 In light of the above, an injunction that restrains MMG from undertaking the proposed action altogether appears to go too far, because there does not appear to be a sufficient likelihood that, even if the applicant is successful in having the Decision set aside, the proposed action would not be able to proceed.
58 However, I do consider that there is a realistic prospect that, if the applicant is successful in this proceeding, and the Decision is set aside and the matter remitted, the Minister may decide that the proposed action is not a controlled action provided it is undertaken in a particular manner, and that the decision notice may set out measures to protect the Tasmanian Masked Owl (in addition to the measures set out in the decision notice of 6 January 2022). In this scenario, the measures required to be taken to protect the Tasmanian Masked Owl may well be the measures now proposed by MMG. Accordingly, had MMG not offered to give the undertaking set out earlier in these reasons, I would have considered it appropriate to make an order restraining MMG, until the determination of this proceeding, or further order, from carrying out the proposed action unless it complied with such measures. The undertaking offered by MMG has the same effect, obviating the need to make such an order.
59 Further, insofar as there is the possibility that, if the applicant is successful in the proceeding and the matter is remitted to the Minister, the Minister may decide that the proposed action is a “controlled action”, I note that the practical impact of the proposed action proceeding (subject to the measures proposed by MMG) is likely to be limited as there is a relatively short period of time between now and the final hearing (which is listed to commence on 19 July 2022) and wet weather during this period may limit the work that can be carried out.
60 For these reasons, in my view, the balance of convenience favours the refusal of the application for an interlocutory injunction to restrain the proposed action altogether. While I would have been minded to make an order restraining MMG from carrying out the proposed action other than in accordance with the measures it has proposed, it is unnecessary to make such an order in light of MMG’s undertaking.
61 I note for completeness that the applicant has questioned the expertise of the consultant engaged by MMG to superintend the measures it proposes with respect to the Tasmanian Masked Owl. The consultant is Hamish Howe, whose role is described in Mr Pandelis’s affidavit at paragraph 35, and whose expertise is described in Mr Scott’s second affidavit at paragraphs 24 to 27. The proposed undertaking refers to a “suitably qualified expert”. I consider it to be for MMG to determine if Mr Howe is suitably qualified to undertake the relevant tasks. I am not persuaded that he is not suitably qualified.
62 It follows that the application for an interlocutory injunction is to be dismissed.
63 I will hear from the parties in relation to costs.
[Discussion with counsel took place in relation to costs.]
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. |
Associate:
