Save the Ridge Inc v National Capital Authority [2004] FCA 996

FEDERAL COURT OF AUSTRALIA

Save the Ridge Inc v National Capital Authority [2004] FCA 996 STATUTORY INTERPRETATION – application of s 28(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ss 5, 65, 11(2) Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 28(1), 475(5), 523, 524, 528

Federal Court Rules Order 1 rule 8, Order 4 rule 14(2)

American Cyanamid v Ethicon Ltd [1975] AC 396 discussed SAVE THE RIDGE INCORPORATED v NATIONAL CAPITAL AUTHORITY AND ANOTHER ACD 16 OF 2004 STONE J 30 JULY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 16 OF 2004

BETWEEN: SAVE THE RIDGE INCORPORATED

APPLICANT

AND: NATIONAL CAPITAL AUTHORITY

FIRST RESPONDENT

AUSTRALIAN CAPITAL TERRITORY

SECOND RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 30 JULY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicant has leave nunc pro tunc to issue proceedings in person pursuant to Order 4 rule 14(2) and Order 1 Rule 8 of the Federal Court Rules. 2. The notice of motion 27 July 2004 otherwise be dismissed. 3. The applicant has leave to appeal from this interlocutory decision. 4. The appeal be expedited. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 16 OF 2004

BETWEEN: SAVE THE RIDGE INCORPORATED

APPLICANT

AND: NATIONAL CAPITAL AUTHORITY

FIRST RESPONDENT

AUSTRALIAN CAPITAL TERRITORY

SECOND RESPONDENT

JUDGE: STONE J

DATE: 30 JULY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter concerns the proposed construction of the Gungahlin Drive Extension freeway ('GDE') which is designed to facilitate the movement of road traffic from the newer expanding northern suburbs of Canberra in the area known as Gungahlin. Construction of GDE has not yet commenced, however considerable work in clearing the proposed site of the freeway has been undertaken. It is not in dispute that the contractors responsible for this work have completed up to 80% of the tree-felling requirements and have commenced the relocation of major services associated with the GDE project. 2 By notice of motion filed on 27 July 2004, the applicant sought urgent interlocutory relief preventing the 'continuing clearing, construction or any work whatsoever' in respect of the GDE. The applicant has made a number of unsuccessful attempts, mainly in the Supreme Court of the Australian Capital Territory, to prevent this work. It is not suggested that the applicant's failure in those attempts in any way reflects on the merits of its present application. 3 As already mentioned, the application for interlocutory relief was made on an urgent basis and was heard by me at 2.15 pm yesterday, 29 July 2004. At 10.15 this morning, 30 July 2004, I gave judgment on the notice of motion refusing the interlocutory relief sought. I gave the applicant immediate leave to appeal from this decision and ordered that the appeal be expedited. The hearing of the appeal before a Full Court was immediately scheduled to commence at 12.30 pm on the same day. 4 In the circumstances it has not been possible to give detailed reasons dealing with every aspect of the applicant's claim or the submissions made by the respondent. However, since the applicant has conceded that the application for interlocutory relief stands or falls on an alleged breach of s 28(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('Act') and since I am of the opinion that this section does not apply to either respondent in respect of its involvement with the GDE, I have confined my reasons to that issue. 5 Section 28(1) of the Act provides as follows: 'The Commonwealth or a Commonwealth Agency must not take inside or outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction.'[emphasis added]. 6 In considering the application of s 28(1) to the present matter it is necessary to consider the definition of the term 'actions' set out inclusively in s 523 and exclusively in s 524. Those sections are as follows: '523 Actions