Biodiversity, Environmental Impact Assessments, Jurisdiction, Wetlands, Taxation, Standing, Wildlife, Damages, Evidence, Permits
Blue Wedges Inc. was a conservation organisation formed in 2003 in response to a proposal to use a dredging process to deepen shipping channels in Port Philip Bay and the Yarra River. It challenged the minister’s jurisdiction to make an approval decision for the dredging of Port Philip Bay by the Port of Melbourne Corporation (EPBC 2002/576). Blue Wedges argued in particular that the project had changed substantially between the original referral in 2002, and the final ministerial decision to approve the project, which was made in 2007. The question to address was at what point does an alteration to a project under the EPBC Act risk invalidating the process under which it is proceeding and require a new referral? The proposed action was referred under the EPBC Act on 15 February 2002, and finally approved by the Commonwealth Minister on 20 December 2007. The controlled action decision and assessment approach decision were made in 2002, so that the period between 2002 and 2007 was largely taken up by lengthy environmental impact assessment processes and public consultation under the accredited State assessment process. Blue Wedges argued that the approval was invalid on the basis that the project the subject of final assessment in 2007 and ultimate approval by the Commonwealth Minister was of a "greater scale and nature and includes different actions" than the project as was described in the original referral that was made in 2002. The Federal Court accepted that there had been significant changes to the project from referral to approval (including size and scale of the proposed dredging), yet found against Blue Wedges on that basis that substantial elements of an action as referred can be changed between referral and the approval decision without rendering the approval invalid. However, the Court did acknowledge that there may be some circumstances where a change to an original action could be classed as a "different action", and by implication find a basis for invalidity. The Court also acknowledged that changes to proposed actions between the referral and approval stages are inevitable, particularly in cases where the environmental approval process for a major project can take a number of years. Although this application was unsuccessful the decision contains an important instance of the Federal Court deciding not to award costs against a community group pursuing public interest litigation. The Court found that the public interest of the case, the Applicant's motivation and the strength of the case should be considered when the Court is asked to deviate from the costs follow the event rule.