Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60

Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60

The delegate erred in law by failing to specify in the notice under s 77, as required by s 77A(1), all measures relied upon as particular manner requirements to mitigate significant impacts, namely the use of K-Grid netting and bundled feed and servicing lines; these were integral to the finding that the action was not a controlled action. The proper procedural relief was to set aside the notice and require a new one specifying those manner requirements. The appeal succeeded on this ground; other grounds concerning alleged failure to address adverse visual impacts and inadequate reasons were dismissed.

Jurisdiction
Australia
Judgment Date
15 April 2019
Procedural Posture
Appeal / Full Court Appeal; Judgment on Merits
Outcome
Appeal allowed in part; notice under s 77 set aside; remitter for fresh notice to include K-Grid and bundled lines; otherwise, appeal dismissed
Legal Topics
['environment Protection and Biodiversity Conservation Act 1999 (cth)' 'judicial Review' 'controlled Actions' 'particular Manner Requirements' 'notice Under S 77 and S 77 A' 'statutory Construction' 'migratory Species' 'threatened Species' 'national Heritage Places' 'world Heritage Properties']
['environmental Law' 'administrative Law'] ['environment Protection and Biodiversity Conservation Act 1999 (cth)' 'judicial Review' 'controlled Actions' 'particular Manner Requirements' 'notice Under S 77 and S 77 A' 'statutory Construction' 'migratory Species' 'threatened Species' 'national Heritage Places' 'world Heritage Properties']

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Procedural Posture

Appeal / Full Court Appeal; Judgment on Merits

Legal Issues

  1. 1 ['Whether the delegate of the Minister erred in failing to specify in the s 77 notice all particular manner requirements (including use of K-Grid and bundled lines) relied upon to avoid a controlled action finding' "Whether the primary judge erred in upholding the delegate's distinction between inherent components of an action and particular manner requirements" 'Whether the delegate failed to consider all adverse visual impacts (esp. of moored barges) on National Heritage/World Heritage values as required by s 75(2)' 'Whether the primary judge failed to provide adequate reasons or mischaracterised arguments']

Ratio Decidendi

The delegate erred in law by failing to specify in the notice under s 77, as required by s 77A(1), all measures relied upon as particular manner requirements to mitigate significant impacts, namely the use of K-Grid netting and bundled feed and servicing lines; these were integral to the finding that the action was not a controlled action. The proper procedural relief was to set aside the notice and require a new one specifying those manner requirements. The appeal succeeded on this ground; other grounds concerning alleged failure to address adverse visual impacts and inadequate reasons were dismissed.

Court Disposition

Appeal allowed in part; notice under s 77 set aside; remitter for fresh notice to include K-Grid and bundled lines; otherwise, appeal dismissed

Orders

  • ["The parties submit draft minutes of order reflecting the conclusions set out in the Court's reasons within 7 days."]