Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670

Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670

The Preliminary Works were expressly excluded from the referral and were not the action that was the subject of the proposal referred to the Minister, so the delegate did not make a reviewable decision about them and did not grant de facto approval. Greenhouse gas emissions were not shown to be a consideration the delegate was legally bound to take into account, and in any event the delegate considered them. The applicant produced no admissible evidence that the Preliminary Works would cause environmental damage, so the injunction claim failed.

Jurisdiction
Australia
Judgment Date
16 May 2008
Procedural Posture
Application for Judicial Review and Injunction Concerning a Proposed Desalination Plant Under the Environment Protection and Biodiversity Conservation Act 1999 (cth) / Trial of the Proceeding; Judgment
Outcome
Judgment for the respondents; application dismissed; costs to be decided on the papers.
Legal Topics
['controlled Action Decision Under the Environment Protection and Biodiversity Conservation Act 1999 (cth)' 'whether Excluded Preliminary Works Were the Subject of a Reviewable Decision' 'relevant Considerations' 'greenhouse Gas Emissions' 'injunction to Restrain Preliminary Works' 'hearsay Evidence']
['administrative Law' 'environmental Law' 'evidence'] ['controlled Action Decision Under the Environment Protection and Biodiversity Conservation Act 1999 (cth)' 'whether Excluded Preliminary Works Were the Subject of a Reviewable Decision' 'relevant Considerations' 'greenhouse Gas Emissions' 'injunction to Restrain Preliminary Works' 'hearsay Evidence']

Case Brief

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Procedural Posture

Application for Judicial Review and Injunction Concerning a Proposed Desalination Plant Under the Environment Protection and Biodiversity Conservation Act 1999 (cth) / Trial of the Proceeding; Judgment

Legal Issues

  1. 1 ['Whether there was a reviewable decision by the delegate to exclude the Preliminary Works from the referral or to determine that they did not require approval under the EPBC Act.' 'Whether any alleged Preliminary Works decision was beyond power because the Preliminary Works were a component of the Project and could not be carved out.' 'Whether the delegate failed to take into account greenhouse gas emissions and their potential adverse impacts on matters protected by Part 3 of the EPBC Act.' 'Whether the State of Victoria should be restrained from carrying out the Preliminary Works unless and until approval was obtained under Part 9 of the EPBC Act.']

Ratio Decidendi

The Preliminary Works were expressly excluded from the referral and were not the action that was the subject of the proposal referred to the Minister, so the delegate did not make a reviewable decision about them and did not grant de facto approval. Greenhouse gas emissions were not shown to be a consideration the delegate was legally bound to take into account, and in any event the delegate considered them. The applicant produced no admissible evidence that the Preliminary Works would cause environmental damage, so the injunction claim failed.

Court Disposition

Judgment for the respondents; application dismissed; costs to be decided on the papers.

Orders

  • ['There be judgment for the respondents.' 'The question of costs will be decided on the papers.' 'The respondents may file and serve any written submissions on the question of costs within seven days of judgment, and the applicant may file and serve any submissions in response within seven days thereafter.']