Editors --- "Error of Law - Failure to Take Into Account Relevant Considerations - Case Note" [2006] AdminRw 12; (2006) 57 Admin Review 80

• Error of law—failure to take into account relevant considerations

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Error of law—failure to take into account relevant considerations

In Minister for the Environment and Heritage v Queensland Conservation Council Inc^[1] the Full Court of the Federal Court reviewed the scope of a requirement that a decision maker consider ‘all adverse impacts’ on the environment of a proposed dam construction.

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) created a scheme for assessing and then regulating actions that could adversely affect certain aspects of the environment. Under s 75 of the Act, the Minister for the Environment and Heritage had to decide whether a proposed action, such as the construction of a dam, is a ‘controlled action’. In deciding whether a proposed action is a controlled action, the Minister must have regard to ‘all adverse impacts’ the action has, will have or is likely to have on environmental matters, including the World Heritage values of a declared World Heritage property, listed migratory species, and listed threatened species or threatened ecological communities (the ‘controlling provisions’). If the action is deemed a controlled action, the Minister must then choose one of five assessment methods that will be used to further investigate the proposed action’s environmental impacts before deciding whether that action can take place.

Sudaw Developments Limited proposed to construct a dam on Queensland’s Dawson River, which flows east to the coast and enters the Great Barrier Reef World Heritage Area. The dam was to be about 500 kilometres from the World Heritage Area. By his first decision of 16 September 2002, the Minister determined that the proposed action was a controlled action and the relevant controlling provisions were those relating to listed threatened species and ecological communities. The Minister did not consider the controlling provisions relating to World Heritage property or listed migratory species as relevant. As a result, in his second decision of 4 December 2002, he determined that the method for assessing the environmental impact of the proposed dam would be a public environment report.

The case turned on whether the Minister had considered the correct controlling provisions because the chosen method of assessment (the public environment report) depended on which controlling provisions applied. Thus, the Federal Court held ‘[a]ny error in deciding which “controlling provisions” apply will therefore infect with error the choice of assessment approach’.^[2]

The Full Court found the Minister’s decision involved an error of law because the Minister had construed the phrase ‘all adverse impacts’ in an ‘impermissibly narrow way’. Before the first decision, some public submissions had contended that the ‘cumulative impacts of … irrigation of agricultural land’, which the dam would facilitate, would adversely affect the World Heritage Area and various listed migratory species. Thus, although the Minister had found that one set of controlling provisions applied, these public submissions suggested that additional controlling provisions should also apply. But the Minister rejected these submissions, claiming the potential impacts of irrigation were not relevant to the proposed action because irrigation was not conducted by the person proposing to do the action. That is, because farmers—and not Sudaw—did the irrigating, it was not an impact of the proposed dam but merely incidental to the dam’s construction.

The Full Court rejected this narrow definition of impact: ‘“[I]mpact” in its ordinary meaning can readily include the “indirect” consequences of an action and may include the results of acts done by persons other than the principal actors’.^[3] Instead, the Court adopted a definition that ‘includes effects which are sufficiently close to the action to allow it to be said, without straining the language, that they are, or would be, the consequences of the action on the protected matter’.^[4] The Court admitted ‘the width of the enquiry in each case will depend on its facts and on what may be inferred from the description of the “action” which the Minister is required to consider’.^[5] Since the Minister himself had acknowledged that there could be some environmental impacts from irrigation, he was bound to consider them when considering ‘all adverse impacts’ of the proposed dam.

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^[1] [2004] FCAFC 190.

^[2] Ibid [15].

^[3] Ibid [53].

^[4] Ibid.

^[5] Ibid [61].