Save the Ridge Inc v Commonwealth [2005] FCAFC 203

Save the Ridge Inc v Commonwealth [2005] FCAFC 203

The making and approval of amendments to the National Capital Plan by the Authority and Minister do not constitute 'action' for the purposes of s 28(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), as such conduct merely removes legal obstacles and does not itself have a physical or significant impact on the environment. Further, granting governmental authorisation is specifically excluded from the definition of 'action' under s 524(2) of the Act.

Parties
Appellant: Save the Ridge Inc (Association No A03329); First Respondent: Commonwealth of Australia; Second Respondent: Australian Capital Territory
Jurisdiction
Australia
Judgment Date
16 September 2005
Procedural Posture
Appeal / Full Court Judgment
Outcome
Appeal allowed in part; otherwise dismissed.
Legal Topics
National Capital Plan Amendment, Environment Protection and Biodiversity Conservation Act, Planning and Land Management Act, Preliminary Questions Procedure
Environmental Law Administrative Law National Capital Plan Amendment Environment Protection and Biodiversity Conservation Act Planning and Land Management Act Preliminary Questions Procedure

Case Brief

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Parties

Save the Ridge Inc (Association No A03329)

Appellant

Commonwealth of Australia

First Respondent

Australian Capital Territory

Second Respondent

Procedural Posture

Appeal / Full Court Judgment

Legal Issues

  1. 1 Whether amendments to the National Capital Plan constitute 'action' for the purposes of s 28(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
  2. 2 Whether such action has, will have, or is likely to have a significant impact on the environment
  3. 3 Whether governmental authorisation is excluded from the definition of 'action' under s 524 of the Act

Ratio Decidendi

The making and approval of amendments to the National Capital Plan by the Authority and Minister do not constitute 'action' for the purposes of s 28(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), as such conduct merely removes legal obstacles and does not itself have a physical or significant impact on the environment. Further, granting governmental authorisation is specifically excluded from the definition of 'action' under s 524(2) of the Act.

Court Disposition

Appeal allowed in part; otherwise dismissed.

Orders

  • The answer to the first preliminary question given by the primary Judge set aside and substituted with: 'Inappropriate to answer'.
  • Appeal otherwise dismissed.