The Roe 8 appeal – what does it all mean for the validity of environmental and planning approvals?

It is common knowledge amongst developers and landowners in Western Australia that there are limited avenues for a third-party to challenge the grant of an environmental or planning approval.  As a consequence of these inherent limitations, it has become increasingly common for aggrieved third-parties to seek to challenge environmental or planning approvals in the Supreme Court by way of judicial review.  Some judicial review applications succeed in spectacular circumstances, but the reality is that most are dismissed for failure to identify any legal error on the part of the decision-maker.

One of the most frequently argued grounds of judicial review is that the body granting the environmental or planning approval has failed to take into account a relevant consideration.  But what exactly constitutes a “relevant consideration” and when will failure to take into account such a consideration actually invalidate the approval under challenge? 

The position has been clarified to some extent by the Court of Appeal in Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126, which is more widely known as the Roe 8 appeal. [1]

In basic terms, the issue in the Roe 8 appeal was whether the failure of the Environmental Protection Authority to take into account its own published policies invalidated its report and recommendation to the Minister for the purposes of the Environmental Protection Act 1986 (WA).  The Supreme Court at first instance said that it did, but this position was overturned by the Court of Appeal.

The Court of Appeal held that: “…in order to constitute a jurisdictional error that entitles a court to quash an administrative decision, the consideration not taken into account must be (1) relevant, (2) mandatory and (3) result in invalidity”.  The Court of Appeal determined that on a proper construction of the Act, the published policies were not mandatory considerations that had to be addressed as a jurisdictional prerequisite to a report and recommendation being made to the Minister.

If an aggrieved third-party is considering challenging the grant of an environmental or planning approval on the basis that the body granting the approval failed to have regard to some particular factor, then the aggrieved third-party should be applying the above legal test in order to ascertain whether they have an arguable case.

Whether a particular consideration is “relevant” will often be uncontroversial, but there may be some cases where relevance of a factor is a matter of judgment for the decision-maker in its own discretion.  Whether a consideration is “mandatory” is a more difficult question to answer and is an issue of law to be determined upon interpretation of the relevant statute.  A statute saying that a consideration “must” be taken into account would ordinarily indicate that it is a mandatory consideration, whereas a statute saying a decision-maker “may have regard to” a consideration may indicate that it is not a mandatory consideration.  A failure to take into account a mandatory relevant consideration will more often that not invalidate the decision under challenge, but whether the decision is actually invalidated as a matter of law is a “contestable judgment”, to adopt the words of the Court of Appeal.

Judicial review is a powerful mechanism for challenging environmental and planning approvals and there is likely to be a steady flow of further judicial review cases in the Supreme Court in the coming years.  Potential applicants for a judicial review proceeding are encouraged to seek legal advice prior to commencing proceedings, so that a thorough review of the challenged decision can be made and preliminary advice provided on the question of whether the relevant decision could in fact be invalidated, having regard to precedents such as the Roe 8 appeal.

If you have any questions about the judicial review process or how it affects your land or development proposal, please contact.

[1] Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126

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.