James Price Point decision – EPA approvals process runs out of gas


The proposed James Price Point gas hub development, championed by the State Government and a large oil and gas company, has been stopped in its tracks in a Supreme Court application brought by a conservation group and a traditional land owner.

In the keenly anticipated decision of The Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307, Chief Justice Wayne Martin held that the environmental authorisation underpinning the proposed gas hub development was invalid, as the Environmental Protection Authority (EPA) had failed to adhere to the correct procedures required under the Environmental Protection Act 1997 (WA) (EP Act).

The Supreme Court’s decision

The first applicant in this matter was The Wilderness Society of WA (Inc), a not-for-profit organisation established with the objective of conserving wilderness areas throughout Australia.  The second applicant in this matter was Mr Richard Hunter, a traditional owner with responsibility for the land the subject of the proposed gas hub development.  Following environmental approval being granted for the project, the applicants applied to the Supreme Court to challenge the validity of the relevant decision-making processes.

The Chief Justice ultimately held that the environmental approval was invalid, on the basis that members of the EPA had conflicts of interest during the various stages through which the proposed gas hub development was assessed.

In particular, sections 11 and 12 of the EP Act require the EPA to follow certain meeting procedures in conducting its operations, including the disqualification of members from voting in circumstances where a member has a pecuniary interest in the subject matter of a proposal.  Amongst other things, certain members of the EPA held shares in the proponent oil and gas company.  The Chief Justice held that these shareholdings were not insignificant and that accordingly, the particular EPA members should have been precluded from partaking in the assessment process.

The result was that the assessment process was tainted by the decision-making meetings of the EPA being conducted without the requisite quorum of members.  It followed that the environmental assessment report ultimately provided by the EPA to the Minister could not be said to have satisfied the content and preparation requirements prescribed by the EP Act and was therefore invalid.  It also followed that the Minister’s subsequent decision that the proposed gas hub development was a “derived proposal” was also invalid.

Challenging decisions of environmental regulators

Following the handing down of the Supreme Court’s decision, Premier Colin Barnett commented that the environmental approval had been invalidated not based on the environmental science, but based on the procedure followed by the EPA.  This statement is accurate and the Supreme Court decision demonstrates how a decision made by an environmental regulator can be successfully challenged when an error of law can be established.

In Western Australia, environmental law statutes do not ordinarily facilitate merits review in forums such as the State Administrative Tribunal (compare, for example, town planning statutes) and in that sense, a person aggrieved by a decision by an environmental regulator should consider whether any errors of law or procedural shortcomings are evident in the making of the decision.

If such a basis can be established to challenge a decision, judicial review can be sought in the Supreme Court and the decision of the environmental regulator may be overturned.  This principle should be borne in mind by both applicants for whom environmental approval has been refused and by persons who are opposed to environmentally-sensitive development affecting their interests.

In summary, any person aggrieved by a decision of an environmental agency should review the process underpinning how that decision was arrived at from start to finish in order to identify any procedural irregularities or shortcomings that may lead to judicial review rights.

Third-party involvement in environmental law matters

The decision also serves as a reminder that in particular circumstances, an interested third-party such as a conservation group may be in a position to challenge a decision made by an environmental regulator.  If the interests of a third-party conservation group are such that a court considers the group to have the requisite standing, that group may be entitled to commence proceedings to challenge environmental approvals.

In this case, the Supreme Court was not actually required to determine whether The Wilderness Society of WA (Inc) had requisite standing to bring a challenge.  It was agreed between the parties from the outset that Mr Richard Hunter, as a traditional landowner, was himself entitled to bring the challenge.  Applying the approach recently adopted by the High Court of Australia in Williams v Commonwealth of Australia (2012) 86 ALJR 713, the Chief Justice considered that the question of whether The Wilderness Society of WA (Inc) had requisite standing did not need to be decided.

To a degree, this rationale followed by the Supreme Court represents a strategic precedent for interested third-parties looking to challenge decisions made by environmental regulators.  If a person with clear standing to bring a challenge (such as a landowner) is prepared to act as a joint applicant in proceedings, an interested third-party could participate in the proceedings as a second applicant, acting with the authority of the first applicant’s standing.  That interested third-party could finance the proceedings and effectively control the challenge on behalf of the first applicant, in an attempt to successfully challenge the decision of the environmental regulator in question.

Commencement of the WA Environmental Offsets Register

When the WA Environmental Offsets Policy was released on 27 September 2011, it envisaged the creation of an Environmental Offsets Register (Register) to provide a centralised public record of all offset arrangements in WA in a centralised system.

Following a period of public consultation and liaison between multiple government departments, the Register has now been established and can be viewed here.

The aims of the Register are to:

  • facilitate transparency and accountability of offsets;
  • provide a single-cost government record for environmental offsets;
  • monitor offset implementation and outcome;
  • improve auditing and quality control of offsets; and
  • provide for efficient retrieval of offset information in flexible ways to meet government, industry and community needs.

The Register includes the following detailed information:

  • the spatial location of the offset;
  • the type of offset and values being offset and relevant conditions;
  • the statutory process under which the offset has been created; and
  • the timelines for implementation.

Lavan Legal welcomes the introduction of the Register and hopes that it will go some way to addressing existing concerns about accountability and duplication of offsets required by different agencies of the state government.

If you have any questions in relation to the Supreme Court decision in The Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307 or environmental offsets, please do not hesitate to contact a member of Lavan Legal’s Environment Team.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.