Air pollution, Biodiversity, Causation, Standing, Forests, Environmental Defenders, Wetlands, Cooperation, Jurisdiction, Evidence
Centennial Hunter Pty Limited, the second respondent in this proceeding proposes to construct and operate an open-cut coal mine and ancillary facilities, known as the Anvil Hill Project, at Anvil Hill in the Hunter Valley, New South Wales. On 11 January 2007, pursuant to s 68 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act), Centennial referred the project to the Minister for the Environment and Water Resources, the first respondent in this proceeding, for a determination as to whether the project is a "controlled action" within the meaning of s 67 of the Act. On 19 February 2007, a delegate of the Minister decided that the project was not a controlled action which meant that the project could proceed without further approval being required under the Act. On 17 May 2007, the applicant, the Anvil Hill Project Watch Association, filed an application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for an order of review of the delegate’s determination that the Anvil Hill Project is not a controlled action. The applicant is an association incorporated in Australia on 21 June 2000. Since that time it has engaged in a series of activities in Australia for the protection of the environment. Its objects at the time of the delegate’s decision included protection of the environment. By virtue of these objects and activities, by the application of s 487 of the Act, the applicant falls within the extended meaning of "person aggrieved" for the purposes of s 5 of the ADJR Act and thus has standing to bring this application. The extended standing accorded under s 487 is an indication of the importance the legislature attached to the involvement and input of concerned members of the community – an importance that reflects the objects set out in s 3 of the Act. The trial judge dismissed the application. Her Honour held: the delegate's approach to determining whether greenhouse gases from the coal mine would have a significant impact on a matter protected under the Act contained no legal error; the delegate's approach to determing whether a listed threatened ecological community existed on the site contained no legal error; the Minister's decision under section 75 of the EPBC Act does not involve a jurisdictional fact. Dismissing the application, Justice Stone said the delegate did not err in determining the mine as a “controlled action” and concluded that the EPBA does not prescribe a frame of reference by which the Minister can assess the significance or substantiality of an impact, such as greenhouse gasses, on matters protected by the EPBA.“Without going into detail it is sufficient to say that these assessments involve closer scrutiny of the proposal than is required to that point,” Justice Stone said. “The Minister must also balance the negative effect of the proposed action against any positive benefits the proposal may have.”She ordered the environmental group to pay the legal costs of the minister and the company.