The Federal Court considered an application for judicial review of a decision by a delegate of the Minister for the Environment that a proposed residential development in Coomera, Queensland, was a “controlled action” pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The basis for the decision was that the proposed development was likely to have a significant impact on the Koala.
The applicant submitted that the Minister’s decision breached rules of natural justice, that the delegate took into account irrelevant considerations and failed to take into account relevant considerations, that the delegate’s reasons were inadequate, that sections of the EPBC Act were misconstrued and misapplied, and that the decision was based on findings that were irrational, illogical or unreasonable.
Rangiah J dismissed the application, finding that none of the grounds of review succeeded.
The decision is notable for its consideration of the meaning of the term “likely” in ss 18 and 18A of the EPBC Act. Sections 18 and 18A relevantly provide that a person must not take an action that “is likely” to have a significant impact on certain species. The delegate had interpreted those provisions as requiring only that there be a “real chance or possibility” that the action would have a significant impact. The applicant submitted that that this was an error of law because the word “likely” meant “more probable than not”. As Rangiah J acknowledged, this question of statutory interpretation had not been authoritatively decided.
In the result, Rangiah J accepted the Minister’s submission that the term “likely” meant a “real or not remote chance or possibility”, by analogy with the interpretation of similar provisions in competition and consumer legislation.
The judgment is published here.
A note by Scott and Angus on the implications of the case, specifically on the construction of the term “likely” in the EPBC Act, is available here.