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 (1) Subject to this Subdivision, action includes: (a) a project; and (b) a development; and (c) an undertaking; and (d) an activity or series of activities; and (e) an alteration of any of the things mentioned in paragraph (a),(b),(c) or (d). 524 Things that are not actions (1) This section applies to a decision by each of the following kinds of person (government body); (a) the Commonwealth; (b) a Commonwealth agency; (c) a State; (d) a self-governing Territory; (e) an agency of a State or a self-governing Territory; (f) an authority established by a law applying in a Territory that is not a self-governing Territory. (2) A decision by a government body to grant governmental authorisation (however described) for another person to take an action is not an action.' 7 The second respondent, the Australian Capital Territory ('ACT'), is clearly not the Commonwealth, nor is it a Commonwealth agency; see s 528 of the Act. I am confirmed in this view by the distinction observed in s 524(1) of the Act between a Commonwealth agency in subsection (1)(b) and a self-governing Territory in subsection (1)(d). That being so it seems to me as a matter of statutory construction that the Australian Capital Territory does not come within the ambit of s 28. If, as the applicant has conceded, the success of its argument necessarily depends on s 28(1) applying to the Australian Capital Territory, then it must follow that its application must fail, or, in other words that, in relation to this respondent there is no serious question to be tried. 8 As the ACT, through its contractors, is actually carrying out the work that the applicant seeks to stop, its failure to establish a serious case against the ACT translates into an inability to bring the work to a halt. The notice of motion, however, also seeks an interlocutory injunction pursuant to s 475(5) of the Act prohibiting the first respondent 'granting further works approvals'. The first respondent is set up under s 5 of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth)('ACT Act'). Section 6 of the ACT Act sets out the functions of the first respondent: 'The functions of the Authority are: (a) to prepare and administer a National Capital Plan; (b) to keep the Plan under constant review and to propose amendments to it when necessary; (c) on behalf of the Commonwealth to commission works to be carried out in Designated areas in accordance with the Plan where neither a Department of State of the Commonwealth nor any Commonwealth authority has the responsibility to commission those works; (d) to recommend to the Minister the carrying out of works that it considers desirable to maintain or enhance the character of the National Capital; (e) to foster an awareness of Canberra as the National Capital; and (f) with the approval of the Minister to perform planning services for any person or body, whether within Australia or overseas; and (g) with the Minister's approval, on behalf of the Commonwealth, to manage National Land designated in writing by the Minister as land required for the special purposes of Canberra as the National Capital.' 9 Section 11(2) of the ACT Act provides, inter alia, that the ACT must not do any act that is inconsistent with the National Capital Plan prepared by the first respondent under Part III of the ACT Act. The role of the first respondent in the planning and development of GDE has involved, at least, amendment of the Plan to permit the clearing of land on the proposed site for the GDE. 10 I accept that the first respondent is a 'Commonwealth agency' within the meaning of s 28(1) of the Act; see s 528 of the Act. That being so, if the first respondent takes 'an action' that has the effect referred to in s 28(1) then it would be in breach of the Act. In my view, however, taking into account the definitions in s 524 and 525, the amendments and authorisations made by the first respondent are not 'actions' within s 28(1). In particular, s 524(2) specifically states that granting a governmental authorisation 'however described' for another person to take an action is not an action. For that reason the first respondent also does not fall within the ambit of s 28(1) and, insofar as the application relates to the first respondent, there is also no serious question to be tried. 11 This is not a decision that one makes lightly. In American Cynamid v Ethicon Ltd [1975] AC 396 at 407-8 Lord Diplock stated: 'It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that "it aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing" …. So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.' 12 In this case, however, I have come to the view expressed above on the basis of statutory interpretation that does not require resolving conflicting evidence or even determining the weight to be attributed to evidence. Nor, in my opinion, does it involve a difficult question of law calling for 'detailed argument and mature considerations'. The provisions of ss 28(1), 524, 525 and 528 are such that I am not persuaded that the applicant has a serious case to be tried in support of its proposition that the respondents fall within s 28 in relation to their involvement with the GDE. As noted above at [3], I gave the applicant leave nunc pro tunc to issue proceedings in person, as requested in the notice of motion. The notice of motion is otherwise dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 30 July 2004 Counsel for the Applicant: Mr P Mees Solicitor for the Applicant: Porters Lawyers Counsel for the First Respondent: Mr D O'Donovan Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: ACT Government Solicitor Counsel for the Second Respondent: Dr J Griffiths SC with Mr C Erskine Date of Hearing: 29 July 2004 Date of Judgment: 30 July 2004