Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2023] FCAFC 139

FEDERAL COURT OF AUSTRALIA

Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2023] FCAFC 139 Appeal from: Friends of the Gelorup Corridor Inc v Minister for the Environment and Water (No 2) [2022] FCA 1554

File number: WAD 13 of 2023

Judgment of: JACKSON, FEUTRILL AND KENNETT JJ

Date of judgment: 22 August 2023

Catchwords: ENVIRONMENT LAW – appeal of decision dismissing application for judicial review of decision to approve a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) – where proposal involving clearing of vegetation likely to impact listed threatened species and ecological communities – whether certain conditions of approval had effect of postponing the substantial evaluation task required by the Act – whether delegate considered the precautionary principle in accordance with the Act – grounds of appeal not made out – appeal dismissed

Legislation: Constitution s 51(xxix) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(2)(h) Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3A, 18, 18A, 19, 67, 67A, 68, 75, 77A, 87, 95B, 95C, 130, 131, 131A, 133, 134, 136, 142, 142A, 144, 145, 145A, 391, 475 Judiciary Act 1903 (Cth) s 39B

Cases cited: Bob Brown Foundation Inc v Minister for the Environment (No 2) [2022] FCA 873 Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; 215 FCR 301 ECE21 v Minister for Home Affairs [2023] FCAFC 52 Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2022] FCA 944 Friends of the Gelorup Corridor Inc v Minister for the Environment and Water (No 2) [2022] FCA 1554 King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts [2009] FCA 330; 165 LGERA 203 Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts [2009] FCAFC 114; 178 FCR 385 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCA 1263; 133 FCR 190 Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419; 218 FCR 491 Queensland v Humane Society International (Australia) Inc [2019] FCAFC 163; 272 FCR 310 Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; 67 NSWLR 256 Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60; 270 FCR 267 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531