The Value of the Appeals System in the Environmental Protection Act (1986) WA - Oskar Lim Honours...

8/10/2019 The Value of the Appeals System in the Environmental Protection Act (1986) WA - Oskar Lim Honours Thesis

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The value of the appeals system in theEnvironmental Protection Act

(1986)WA

Oskar Lim

30404317

Supervisor Professor ohn !ailey

S"hool of #nvironmental S"ien"e

$a"ulty of S"ien"e an% #n&ineerin&

'ur%o"h (niversity )01)

1


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*e"laration+

I declare that this thesis is my own account of my research and contains as its content, work, which

has not previously been submitted for another degree at any tertiary institution.

..........................................

Oskar Lim

2


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Ta,le of -ontents+

A,stra"t 4

A"kno.le%&ements /

-hapter 1 ntro%u"tion 2

-hapter ) Literature evie. 11

2.1 nvironmental decision!making 11

"he different methods of reviewing environmental decisions

1#

"he history of the appeals system in the $ %ct 1&

'riticisms of the current appeals system

1(

-hapter 3 'etho%s )0

-hapter 4 esults an% *is"ussion )

$ro)ects containing *aterways appeals between 2++& and 2+1+ 2(

$ro)ects containing ative "errestrial -egetation appeals between 2++& and 2+1++

-hapter / -on"lusion

.1 $ro)ects containing *aterways appeals /1

.2 $ro)ects containing ative "errestrial -egetation appeals /1

.0 $ro)ects containing ative "errestrial -egetation appeals

.# *hy the ma)ority of appeals from pro)ects complied with ection #% before entering the

appeals system /2

. hould the current appeals system be reformed /0

!i,lio&raphy 72

Appen%i5 7

0


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A,stra"t+

"he appeals provisions of theEnvironmental Protection Act 1986 3*%4 is an avenue that allows for

those affected by decisions made by the nvironmental $rotection %uthority in regards to proposals

to raise their ob)ections. "he appeals provisions are an important part of environmental impact

assessment which is also under the Environmental Protection Act 1986 3*%4. "he appeals

provisions provide for a ministerial merits review system for appeals. In the aim of the thesis is to

determine whether the appeals provisions are adding value to the pro)ects that are appealed against.

"his thesis uses the principles of ection #% in the Environmental Protection Act 1986 3*%4 to

provide the criteria for the appeals to determine whether the appeals system is adding value or not

to pro)ects sub)ect to environmental impact assessment. In this thesis pro)ects with *aterways and

ative "errestrial -egetation appeals are focussed on. "he results from the thesis show that certain

pro)ects were not enhanced in compliance after leaving the appeals system and were diminished in

compliance. $ro)ects from the $ilbara and the *heatbelt and 5as and Iron Ore pro)ects were more

likely to see their compliance diminish after leaving the appeals system and decrease in value

because the appeals are not delivering better environmental outcomes for the pro)ects. "he appeals

of those pro)ects were a stark contrast to other types of pro)ects such as ilicon and Landfill pro)ects

where they were less likely to diminish in compliance. "he reasons as to why certain pro)ects

diminish in compliance and decrease in value will need further research. "his thesis recommends

that the current ministerial merits review appeals system be reformed so that appeals under the

Environmental Protection Act 1986 3*%4 go to the tate %dministrative "ribunal. "he tate

%dministrative "ribunal has moreprocedural integrity and transparent accountability compared to

the current ministerial merits review system.

#


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A"kno.le%&ements+

"his thesis is dedicated to the memory of Isabelle Lake who passed away this year from a long fight

with leukaemia. 6our strength and bravery, particularly in the last few weeks of your life, continues

to inspire me. *hen I look to the stars, I always think of you.

I must thank my supervisor $rofessor 7ohn 8ailey for his support 3particularly when I felt like I was

going insane4 and wisdom. "he stuffed toys, particularly the puppets, in your office provided much

comfort. I must also thank 9r 7oe :ontaine for teaching -20. ;e did an es not enough to want a cracker, you have to

earn it.@ I must also thank ophie ;esford and the entire ;esford family for much of this thesis

would not have been possible without their love and support. I would like to thank the women at

Lady -elvet 'abaret for all the fun times I had helping you guys with your burles?ue acts. "hey

provided much )oy for me during the stressful times of writing this thesis. In particular I must thank

ugar 9u 7oure for teaching me the art of Astripper pantsB and be)ewelling bo


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I proved you can teach an old dog new tricks.

-hapter 1 ntro%u"tion+

"heEnvironmental Protection Act 1986 3*%4 3the $ %ct4 is the environmental legislation under

which development proposals are referred in regards to nvironmental Impact %ssessment 3I%41.

:or I%, development proposals are referred to it if they will have a significant impact on the

environment if implemented2. "he $ %ct contains its ob)ect, provides for I%, and prescribes an

appeals system.

"he ob)ect of the $ %ct is to protect the environment of *%, having regard to the principles of

cological ustainable 9evelopment 394 outlined in ection #%0. "he $ %ct also states the

ob)ect of the nvironmental $rotection %uthority 3$%4 is Ato protect the environment and to

prevent, control and abate pollution and environmental harmB#. ection #%>s principles are the

precautionary principle, the intergenerational principle, the principle of the conservation of

biological diversity and ecological integrity, the principles relating to improved valuation, pricing

and incentive mechanisms, and the principle of waste minimisation.

"he long title of the $ %ct also states the purpose of the $ %ct. Long titles of legislation appear

on the first page after the contents pages and e


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connected with the foregoingB&.

$rovisions for nvironment $rotection $olicies 3$$s4, I% and nvironmental Hegulation are

found in the $ %ct. $$s are statutory policies developed under $art III of the $ %ct/

. "hey are

whole!of!5overnment policies that are ratified by $arliament and they have the force of law from

the day they are published in the *% 5overnment 5aette(. $$s are developed, for instance, to

establish environmental values and environmental ?uality ob)ectives for a particular environment or

component of the environment. Hegulations can be made under chedule 2 of the $ %ct J. "he

5overnor may make regulations Aprescribing all matters that are re?uired or permitted by this %ct to

be prescribed, or are necessary or convenient to be prescribed, for giving effect to the purposes of

this %ct.B1+

$art I- of the $ %ct contains the provisions for I%. I% is a form of environmental decision!

making11. $art I- gives the $% the responsibility for I% 12. I% is a systematic and orderly

evaluation of a proposal and its impact on the environment 10. "he assessment includes considering

ways in which the proposal, if implemented, could avoid or reduce any impact on the environment.

:or I% provisions under the $ %ct, development proposals are referred to the $% to be

assessed1#.%ny person can refer a development proposal to the $%1. If the $% decides to assess

the proposal that has been referred to it, the $% will prepare a report to be given to the =inister

1&

.& Environmental Protection Act 1986 3*%4, above n 1, long title./ Ibid, $art III.( nvironmental $rotection %uthority,Environmental Protection Policies,


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"his $% report will detail what the $% considers the key environmental factors of the proposal

are, whether they believe the proposal should be implemented and any recommendations the $%

believes the proposal should be sub)ect to1/. %fter this $% report is published, the =inister can

make the decision on whether or not the proposal should be implemented1(

. I% is a crucial part of

the $ %ct.

$art -II of the $ %ct contains the provisions for an appeals system which are important in regards

to I%1J. "he appeals provisions are a form of ministerial merits review where the =inister makes

the final decision on each appeal in regards to the merits of the decision 2+. In ection 1++ it

contains the types of appeals that may be lodged in regards to proposals. %ny person may appeal to

the =inister on a decision made by the $% not to assess a proposal, other than a decision that

includes a recommendation that the proposal be dealt with under $art - 9ivision 2 of the %ct21, the

content of or any recommendation in the report prepared under section ## in respect of a proposal,

or the content of22or any recommendation in, the report prepared under section #(9 in respect of a

scheme20.

8efore the appeal goes to the =inister, the %ppeals 'onvenor 3the 'onvenor4 writes a report with

their recommendations to be given to the =inister2#. *hen the =inister receives the 'onvenor>s

report they make a decision on the appeals to which that report relates 2. ection 1+1 details the

powers of the =inister in respect to appeals lodged under section 1++, and for appeals in regards to

1/ Ibid, s #.1( Ibid.1J $eter 7ohnson,A Discussion Pa"er on t#e A""eals $%stem under t#e Environmental Protection Act 31JJ14,

nvironmental $rotection %uthority KhttpDEEepa.wa.gov.auE$%9ocLibE+0F8#+.pdfG, 1.2+ 9eclan 9oherty, >"he merits of *estern %ustralia>s nvironmental appeals regime> 32+1+4 2J314Australian

&esources and Energ% aw (ournal, 11+, 11 KhttpDEE+!search.informit.com.au.prospero.murdoch.edu.auEfull"e


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environmental outcomes, it needs to be determined why and how this could be improved.

"o determine whether the appeals provisions adds value to the pro)ects, the pro)ects were followed

from their beginning right to the end for appeals under ection 1++ between the years of 2++& and

2+1+. "he appeals were followed from the beginning with the $% reports, through to the decisions

made by the 'onvenor and the =inister in regards to those pro)ects that the appeals were against to

determine whether pro)ects were enhanced in compliance with ection #% to determine whether the

appeals system is adding value to the pro)ects after leaving the appeals system. It is hoped that this

thesis will fill in the gaps of knowledge for the appeals provisions whether they are fulfilling

ection #%>s principles and they are delivering better environmental outcomes. It is hoped that it is

determined whether the current appeals provisions could be improved.

1+


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-hapter ) Literature evie.+

"he purpose of this chapter is to provide a theoretical conte 32++J4 2&Environmental and

Planning aw (ournal 110, 110.httpDEE+!legalonline.thomson.com.au.prospero.murdoch.edu.auEsubscribedEstatic!fsE)ournalsE$L7EL%*H$!+2&!$L!7L!+110.pdfsessionIdMb+b/##0(+ade&d+#0ece&2&0++1(c1+.

0# ;arold Leventhal, above n 01, +J.0 Honnie ;arding, 'arolyn ;endriks and =ehreen :aru?i, above n 11, 1.0&

7ohn 5lasson, Hiki "herivel, %ndrew 'hadwick,!ntroduction to Environmental !m"act Assessment, 3"aylor :rancis, 0rded, 2++4, #.

11
http://0-www.jstor.org.prospero.murdoch.edu.au/stable/pdfplus/3311540.pdf?acceptTC=truehttp://0-www.jstor.org.prospero.murdoch.edu.au/stable/pdfplus/3311540.pdf?acceptTC=truehttp://0-legalonline.thomson.com.au.prospero.murdoch.edu.au/subscribed/static-fs/journals/EPLJ/LAWREP-026-EPL-JL-0113.pdf?sessionId=b0b744380ade6d0543ece62630018c10http://0-legalonline.thomson.com.au.prospero.murdoch.edu.au/subscribed/static-fs/journals/EPLJ/LAWREP-026-EPL-JL-0113.pdf?sessionId=b0b744380ade6d0543ece62630018c10http://0-legalonline.thomson.com.au.prospero.murdoch.edu.au/subscribed/static-fs/journals/EPLJ/LAWREP-026-EPL-JL-0113.pdf?sessionId=b0b744380ade6d0543ece62630018c10http://0-www.jstor.org.prospero.murdoch.edu.au/stable/pdfplus/3311540.pdf?acceptTC=truehttp://0-www.jstor.org.prospero.murdoch.edu.au/stable/pdfplus/3311540.pdf?acceptTC=truehttp://0-legalonline.thomson.com.au.prospero.murdoch.edu.au/subscribed/static-fs/journals/EPLJ/LAWREP-026-EPL-JL-0113.pdf?sessionId=b0b744380ade6d0543ece62630018c10http://0-legalonline.thomson.com.au.prospero.murdoch.edu.au/subscribed/static-fs/journals/EPLJ/LAWREP-026-EPL-JL-0113.pdf?sessionId=b0b744380ade6d0543ece62630018c10


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decision!making where the terms and conditions are specified and enforced0/.

"here are numerous principles that environmental decision!making should adhere to. ;owever, it

must at the very least adhere to natural )ustice0(. "he two primary principles of natural )ustice are

that a decision!maker must be unbiased, and any person whose interests will be adversely affected

by a decision must be given an opportunity to be heard 0J. ight other principles have been identified

that are considered instrumental for an effective I% system these are participation, transparency,

certainty, accountability, integrity, cost!effectiveness, fle"ransparency in environment impact assessment decision!makingD

Hecent developments in *estern %ustralia> 32+++4 1(3#4!m"act Assessment and Pro)ect A""raisal 2&+, 2&1

KhttpDEEresearchrepository.murdoch.edu.auE1&10E1Ems1+.pdfG.## LeHoy $addock, >nvironmental accountability and public involvement> 32++#4 21324Pace Environmental aw

12
http://www.merriam-webster.com/dictionary/accountabilityhttp://www.merriam-webster.com/dictionary/accountabilityhttp://www.businessdictionary.com/definition/transparency.htmlhttp://www.businessdictionary.com/definition/transparency.htmlhttp://researchrepository.murdoch.edu.au/1613/1/ms10.pdfhttp://www.merriam-webster.com/dictionary/accountabilityhttp://www.merriam-webster.com/dictionary/accountabilityhttp://www.businessdictionary.com/definition/transparency.htmlhttp://researchrepository.murdoch.edu.au/1613/1/ms10.pdf


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decisions enables the public to es

&eview 2#0, 2#0 KhttpDEEdigitalcommons.pace.eduEcgiEviewcontent.cgiarticleM11#Jconte


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decisions and appeal against them if they are affected by them and this increases the public>s

confidence in the system2. %s the right to appeal is important for accountability, public participation

and public confidence, this shows that this an integral part of the I%.

)) The %ifferent metho%s of revie.in& environmental %e"isions+

"here are several ways that environmental decisions can be reviewed and one of those ways is

through )udicial review. 7udicial review is a common law right0. 7udicial review enables a person

disadvantaged by an administrative decision to seek review by a court on the lawfulness of that

decision#. "he court will not review a decision in order to determine whether or not it was the right

decision to make, and will only determine whether it was procedurally correct under the law . %s

)udicial review does not look at the merits of a decision to determine what the best decision would

have been, it will not always provide a satisfactory result&. %s )udicial review can only review a

decision to determine whether it was lawfully made, they can only e"he Hight to 7udicial Heview> 31J(4 /1304Harvard aw &eview, #+1, #+1

KhttpDEEheinonline.orgE;OLELanding$agecollectionM)ournalshandleMhein.)ournalsEhlr/1divM0+idMpageMG.# :iona L =cVenie,5ature o+ (udicial &eview31 7uly 2+1+4 "he Law ;andbook

KhttpDEEwww.lawhandbook.org.auEhandbookEch21s+2s+1.phpQG. 9 :isher,Australian Environmental aw, 3Lawbook 'o, 2++04 ##/.& icole 9i7udicial Heview of nvironmental decision!making in Pueensland> 31JJ4 0314ri++it# aw &eview,

J#, J# KhttpDEEwww.austlii.edu.auEauE)ournalsE5riffLawHwE1JJ#E0.htmlG./ :iona L =cVenie, above n #, #.( Wniform Legislation and tatutes Heview 'ommittee, above n #(, 1&+.J

Ibid.&+ 9eclan 9oherty, above n 2+,1.

1#
http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hlr71&div=30&id=&page=http://www.lawhandbook.org.au/handbook/ch21s02s01.phphttp://www.austlii.edu.au/au/journals/GriffLawRw/1994/3.htmlhttp://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hlr71&div=30&id=&page=http://www.lawhandbook.org.au/handbook/ch21s02s01.phphttp://www.austlii.edu.au/au/journals/GriffLawRw/1994/3.html


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Puasi!)udicial and merits review are the other ways that environmental decisions can be reviewed.

"hey only came about in the mid 2+ thcentury&1. "hese forms of review need to be provided for in

legislation&2. "hese forms of review are considered more acceptable for the review of environmental

decisions&0

.Puasi!)udicial review bodies have a Apartially )udicial character by possession of the

right to hold hearings on and conduct investigations into disputed claims, and alleged infractions of

rules and regulations and to make decisions in the general manner of courtsB. %n e"he mergence of %dministrative "ribunals in -ictoria> 3speech delivered at the %nnual

5eneral =eeting of the -ictorian 'hapter of the %ustralian Institute of %dministrative Law Incorporated, 10ovember 2++0, $arliament ;ouse, =elbourne4.

&0 9eclan 9oherty, above n 2+, 1. 2erriam-ebster Dictionar%3 32+114 =eriam!*ebster. KhttpDEEwww.merriam!webster.comEdictionaryE?uasi!

)udicialG at 2# %pril 2+11.& and and Environment ourt (urisdiction 32( :ebruary 2+114 Land and nvironment 'ourt

KhttpDEEwww.lawlink.nsw.gov.auElawlinkElecEllFlec.nsfEpagesEL'F)urisdictionfullG.&& Ibid.&/ Ibid.&( Ibid.&J

Hobin 'reyke, >"he 'riteria and tandards for =erit Heview by %dministrative "ribunals>, 31JJ(4 J5ational aw&eview,1, 1 KhttpDEElaw.anu.edu.auEWnitWploadsEL%*(20&!J#!=eritHcipl.$9:G.

1
http://www.merriam-webster.com/dictionary/quasi-judicialhttp://www.merriam-webster.com/dictionary/quasi-judicialhttp://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_jurisdictionfullhttp://www.merriam-webster.com/dictionary/quasi-judicialhttp://www.merriam-webster.com/dictionary/quasi-judicialhttp://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_jurisdictionfull


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merits appeals of decisions under the $ %ct/+. "he =inister takes account of the $% report and

recommendations, any appeals and the report from the 'onvenor, and also consults with other

=inisters with statutory functions relevant to the development, and then determines what conditions

should be imposed upon the proponent/1

. "heir decision is final and without appeal/2

.

In *% there is the tate %dministrative "ribunal 3%"4, a ?uasi!)udicial review tribunal. "he %"

was established in 2++ as an independent body that makes and reviews a range of administrative

decisions/0. "he %" reviews administrative decisions made by a public official or local

government body regarding personal or commercial activities/#. "he %" also reviews decisions

made by regulatory bodies regarding licences to operate in an industry or profession/. "he appeals

from the $ %ct were recommended to be moved to the %"/&. ;owever, the $ %ct appeals were

one of the few =inisterial merits appeals that were not moved into the )urisdiction of the %" //.

)3 The history of the appeals system in the #P A"t+

"he current appeals system was introduced in the $ %ct to overcome the criticism of the previous

act theEnvironmental Protection Act 1971 3*%4 where there was no avenue for ob)ecting to a

decision once it was made beyond )udicial review on alleged errors of law /(. "he current $ %ct

was originally intended to provide a clear and easy appeals system to ensure that the public was not

disadvantaged by environmental conditions set on new developments/J. "he creators of the appeals

provisions decided to avoid make a rigid system

(+

. =any aspects of the appeals system were left to/+ 9eclan 9oherty, above n 2+, 11&./1 Ibid./2 Ibid, s 1+1./0 About $A 32+114 tate %dministrative "ribunal KhttpDEEwww.sat.)ustice.wa.gov.auE%EaboutFsat.asp


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administrative discretion in regards to the constitution of the appeals committee and its

procedures(1.*hile the appeals system could have been considered ?uite open, it left a lot of scope

for setting up the appeals committees in different ways with functions appropriate to the particular

matter under review(2

.

In 1JJ0, the role of the 'onvenor was created to coordinate all appeals under the $ %ct and it was

only an administrative role at the time and was not added to the $ %ct (0. "he role of the 'onvenor

is to give advice and make recommendations to the =inister on appeals made under the $ %ct(#.

"he conversion of this role into a statutory one was spurned by a discussion paper on the appeals

system which was concerned with the amount of time being spent on appeals, as well as the overall

increase of appeals over time, and recommended that a 'onvenor who was separate from the

=inister be introduced who would be in charge of dealing with appeals(. "he 2++0 amendment of

the $ %ct gave the 'onvenor statutory recognition(&.

In 2+1+ there were more changes to the appeal system as a result of the A""rovals and &elated

&e+orms /5o3 1 /Environment Act :1:3*%4. "he ob)ective of the amendment was to amend the

appeals system to remove duplicative or unnecessary appeal points, and to align appeal periods

across environmental regulation processes(/. %ppeals under ection 1++3143a4 on the level of

assessment no longer apply when the decision not to assess a proposal includes a recommendation

that the proposal be dealt with as a clearing permit

((

. "he amendment deleted ection 1++3143b4 to

preclude appeals on the level of assessment when the $% has decided to assess a proposal (J."he

(1 Ibid.(2 Ibid.(0 *estern %ustralia,Parliamentar% Debates /Hansard -ol 0+&, 1JJ0!J#, #2/J 321 eptember 1JJ04.(# Environmental Protection Act, above n 1, s1+/8.( $eter 7ohnson, above n 1J, 1#.(& *estern %ustralia,Parliamentar% Debates, Legislative 'ouncil, & ovember 2++2, 2 3Vim 'hance, =inister for

%griculture and :ood4.(/ *estern %ustralia,Parliamentar% Debates, Legislative 'ouncil, 1J ovember 2++J, J#+/ 39onna :aragher,

=inister for nvironment4.((

Ibid.(J Ibid.

1/


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administrative procedures were amended to reduce the number of levels of assessment from five to

two $ublic nvironmental Heview and %ssessment on $roponent Information 3no public review4J+.

%ppeal rights on the $%>s decision that a referred proposal is a derived proposal were removed and

this was done to streamline the administrative process for declaring a proposal and encourage

greater use of strategic assessmentsJ1. "he appeal right on the $%>s decision on the scope and

content of an assessment of a scheme was also removed as the 5overnment believed that any issue

raised by the scope and content is more appropriately addressed via discussions with the responsible

authority and is not a matter that needs to be open for appealJ2.

)4 -riti"isms of the "urrent appeals system+

One of the arguments against the appeals system is that there could be a breach of natural )usticeJ0.

"his is because according to some critics for the 'onvenor there is a lack of procedural guidance

and this fails to comply with natural )usticeJ#. 'ritics have argued that the $ %ct has been written

so that it provides little guidance to appellantsJ. %n appeals system that does not have many

procedural rules and is considered too fle


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'aesarBJJ. In the current system, critics argue that the =inister plays numerous roles and these roles

can contradict with each other1++. %n es contradicting roles opens the appeals system to

not be trusted by the public1+#.

%nother criticism is the inability of any further merits appeal for appealing against the =inister>s

decision1+.7udicial review is available to appeal the =inister>s decisions through the common law,

however because the $ %ct does not clearly provide for )udicial review and an appellant will need

to show they have a special interest in the proposal compared to the general public to demonstrate

they have standing in the matter1+&. tanding is very difficult to prove if the harm suffered by the

appellants 3for e


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-hapter 3 'etho%s+

ince 1J(& there have been thousands of pro)ects and thousands of appeals against those pro)ects. It

is important to limit the number of appeals to be sampled as there are too many that can be

recorded. "his is one of the reasons as to why the appeals were limited to 2++& and 2+1+. %nother

reason was that appeals from before 2++& were not readily available on the internet but all appeals

from 2++& onwards were available on the 'onvenor>s website

3httpDEEportal.appealsconvenor.wa.gov.auE4. %nother reason why the research was limited to appeals

between 2++& and 2+1+ was because all appeals after 2+1+ were sub)ect to the amendments in the

A""rovals and &elated &e+orms /5o3 1 /Environment Act :1:3*%4 as mentioned above. "he

appeals provisions would have been different from 2+11 onwards so it was decided that the appeals

provisions needed to be consistent in the sampling strategy.

"he types of appeals chosen were appeals for the environmental factors of ative "errestrial

-egetation and *aterways. I used the definitions of these types of appeal from the Environmental

uidance +or Planning and Develo"ment report, a report from the $% that details the definitions

for those environmental factors. "he definitions of these two environmental factors can be found in

the appendi


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recommendations, =inister>s reports and =inisterial tatements are available on the $% website

3httpDEEepa.wa.gov.auE4. "he 'onvenor>s reports are available from the 'onvenor>s website. "wo

s decision

*hether the conditions were strengthened, weakened or there was no change at all and

%ny changes in the ministerial statement from the recommendations in the $% report.

:or the e


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with the ection #% principles."hese principles were used as criteria to determine whether the

appeals system adds value to the pro)ects. ection #% of the $ %ct states the ob)ect and principles

of the $ %ct. "he principles will be used as criteria to determine whether the appeals system is

adding value to development pro)ects. 8y determining whether from the assessment of pro)ects

complied with ection #% before entering the appeals system and whether the pro)ects enhanced or

diminished in compliance with ection #% after leaving the appeals system, we can determine

whether the appeals system is adding value to the pro)ects.

ection #% states that Athe ob)ect of this %ct is to protect the tate, having regard to the following

principles...B1+/. "he principles of ection #% are all principles of 9 and are commonly found in

%ustralian legislation and policy1+(. "he report ur ommon 0utureby the *orld 'ommission on

nvironment and 9evelopment is usually credited with introducing the idea of 9 1+J into broad

political and policy debates11+. 9 involves the simultaneous satisfaction of economic,

environmental and social factors111. "he principles in ection #% areD

"he precautionary principle

"he intergenerational principle

"he principle of the conservation of biological diversity and ecological integrity

"he principles relating to improved valuation, pricing and incentive mechanisms and

"he principle of waste minimisation.

"he $recautionary $rincipleD

"he precautionary principle states Awhere there are threats of serious or irreversible damage, lack of

1+/ Environmental Protection Act 1986 3*%4, above n 1, s#%.1+( H ;arding, >cologically sustainable developmentD origins, implementation and challenges> 32++&4 1(/Desalination

22J, 20.1+J *orld 'ommission of nvironment and 9evelopment, >Our 'ommon :uture> 31J(/4 KhttpDEEwww.un!

documents.netEwced!ocf.htmG.11+

H ;arding, above 1+(, 201.111 Ibid, 200.

22
http://www.un-documents.net/wced-ocf.htmhttp://www.un-documents.net/wced-ocf.htmhttp://www.un-documents.net/wced-ocf.htmhttp://www.un-documents.net/wced-ocf.htm


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full scientific certainty should not be used as a reason for postponing measures to prevent

environmental degradation. In the application of the precautionary principle, decisions should be

guided by X

3a4 careful evaluation to avoid, where practicable, serious or irreversible damage to the

environment and

3b4 an assessment of the risk!weighted conse?uences of various options.B112

"he precautionary principle can be defined as a principle that encourages decisions that protect

human health and the environment in the face of uncertain risks110. "he principle has been enshrined

in numerous %ustralian legislation and policies11#."he principle has gained importance over time

because there is a perception in society that the pace of environmental degradation continues to

grow more ?uickly than society>s ability to identify and correct the environmental degradation11.

"he principle re?uires decision!makers to make decisions with the goal to reduce and prevent

negative environmental impacts even if the potential andEor irreversible threat of harm are not

certain11&. "he =inister when determining environmental appeals with their decision should Aavoid,

where practicable, serious or irreversible damage to the environment.B11/

"he $ %ct>s precautionary principle is ?uite weak. Often weak versions of the principle contain

some form of the phrase Alack of scientific certainty should not be used as a reason for postponing

action.B

11(

:or the $ %ct, it states that Awhere there are threats of serious or irreversible damage,

lack of full scientific certainty should not be used as a reason for postponing measures to prevent

112 Environmental Protection Act 1986 3*%4, above n 1, s #%.110 9avid Vriebel et al, >"he $recautionary $rinciple in nvironmental cience> 32++14 1+J3J4Environmental Healt#

Pers"ectives (/1, (/1.11# 9eborah '. $eterson, >$recautionD principles and practice in %ustralian environmental and natural resource

management> 32++&4+ #e Australian (ournal o+ Agricultural and &esource Economics =69,#/(.11 9avid Vriebel et al, above n 110, (/1.11& 9eborah '. $eterson, above n 11#, #&J.11/

Environmental Protection Act 1986 3*%4, above n 1, s #%.11( 9eborah '. $eterson, above n 11#, #/1.

20


24/93

environmental degradationB11J.*eak formulations of the precautionary principle act as a Arebuttal

to the mistaken claim that uncertainty warrants inactionB12+. ;owever this form does not re?uire

action to prevent environmental damage, even if the threshold of threat has been satisfied 121.

"he $ %ct does not define what evidence of harm and risk will satisfy the threshold test of Aserious

or irreversible damage to the environmentB. ;owever it has been argued that there is a trend for

%ustralian tribunals to accept less!ob)ective evidence of threat as sufficient to satisfy the threshold

test for cases which have a lot of comple< issues, large information gaps, high levels of scientific

uncertainty and the potential for serious and permanent damage to the environment122.


25/93

"he principle of conservation of biological diversity and ecological integrityD

"he principle of conservation of biological diversity and ecological integrity states that

Aconservation of biological diversity and ecological integrity should be a fundamental

considerationB12J

. It is particularly important that decision!makers take this fundamental

consideration into regard in %ustralia due to its poor biodiversity conservation record and its uni?ue

biodiversity10+. "his principle is important, however it is only one of a number of principles the

implementation of which >can> achieve 9101. %lthough this principle is of fundamental

consideration, decision!makers within their legal boundaries can make decisions that impact

significantly and negatively on the environment102.

"he principle relating to improved valuation, pricing and incentive mechanismsD

"he principle relating to improved valuation, pricing and incentive mechanisms statesD

A nvironmental factors should be included in the valuation of assets and services.

"he polluter pays principle X those who generate pollution and waste should bear the cost

of containment, avoidance or abatement.

"he users of goods and services should pay prices based on the full life cycle costs of

providing goods and services, including the use of natural resources and assets and the

ultimate disposal of any wastes.

nvironmental goals, having been established, should be pursued in the most cost effective

way, by establishing incentive structures, including market mechanisms, which enable those

best placed to ma


26/93

"he principle means that environmental factors should be included in the valuation of assets and

services10#. "he principle is based on the policy that if the real value of natural resources were

reflected in the costs of using those resources, then the resources would be sustainably used and

managed and not wasted10

. 'ombating marine pollution from land!based activitiesD %ustralian initiatives> 31JJ&4 0031!04

cean and oastal 2anagement (/, 1+/.10J ;enrik 7acobsen and =erete Vristoffersen, >'ase tudies of *aste =inimisation $ractices in urope> 32++24

Euro"ean Environment Agenc%#, .1#+

Ibid.1#1 Ibid.

2&


27/93

before entering the appeals system and a relative test of compliance after leaving the appeals

system. "he criteria allows us to see how the pro)ects were before they entered the appeals system

and then allows us to see whether these pro)ects were able to change in compliance after leaving the

appeals system. It is important that we use the same criteria for the appeals against the pro)ects both

before and after leaving the appeals system so that we are as consistent and as ob)ective as possible.

"he criteria will allow us to determine whether the pro)ects were enhanced, diminished or not

changed in compliance after leaving the appeals system.

2/


28/93

-hapter 4 esults an% *is"ussion

41 Proe"ts "ontainin& Water.ays appeals ,et.een )002 an% )010+

5umber o+ aterwa%s a""eals +rom "ro)ects.

"able 1 displays the number of appeals from pro)ects between 2++& and 2+1+. In total there were

12& *aterways appeals against pro)ects between those years. "able 2 shows the number of appeals

against pro)ects that complied with ection #% before entering the appeals system. "able 0 shows

the number of appeals against pro)ects that did not comply with ection #% before entering the

appeals system. "ables 2 and 0 also show whether the pro)ects were enhanced or diminished in

compliance with ection #% after leaving the appeals system.

In "able 2, most of the appeals did not lead to an enhancement of the pro)ectsC compliance. In 00R

of the appeals against pro)ects, the pro)ects remained at the same level of compliance, in 2#R of

appeals against pro)ects, compliance diminished for pro)ects. In 2+R of appeals against pro)ects, the

pro)ects> enhanced in compliance. In the balance of cases appeals were remitted back to the $%. In

"able 0, most of the appeals also did not enhance the pro)ects compliance. In R of the appeals

from these pro)ects they remained at the same level of compliance, and 02R diminished. "he

remaining #R were enhanced in compliance.

:or both tables most of the pro)ects that remained at the same level of compliance were because the

appeals were dismissed by the =inister. :rom the appeals that were remitted to the $% for further

consideration they were all from the 6annarie olar alt $ro)ect, a olar alt :ield from the

5ascoyne.

2(


29/93

able 1. 5umber o+ a""eals in eac# %ear between ::6 and :1:3

8ear 9um,er of appeals

2++& 12

2++/ 20

2++( #(

2++J 1&

2+1+ 2/

able . 5umber o+ a""eals +rom "ro)ects t#at com"lied be+ore and w#et#er t#e% en#anced?did not

en#ance in com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3

Appeals that

"omplie%

Appeals

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals remitte%

J( 2+ 2# 02 22

able @. 5umber o+ a""eals +rom "ro)ects t#at did not com"l% be+ore and w#et#er t#e%

en#anced?did not en#ance in com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3

Appeals that

%i%n:t "omplie%

Appeals

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals remitte%

2( 1 J 1( +

2J


30/93

om"arison o+ aterwa%s a""eals +rom "ro)ects wit# t#eir location and $ection =A.

"able # shows the number of appeals against pro)ects with the pro)ect locations that complied with

ection #% before entering the appeals system and how many of those appeals enhanced or

diminished the pro)ects in compliance after leaving the appeals system. =ost of the appeals against

the pro)ects from all locations did comply originally but most of them did not change the pro)ects

and they remained at the same level of compliance. "here are however some e


31/93

did not change the pro)ects and they remained at the same level of compliance and #0R of appeals

against pro)ects diminished the pro)ects in compliance. "he R of appeals from the $ilbara that

enhanced the pro)ect came from the =acedon $ro)ect.

able =. 5umber o+ a""eals +rom "ro)ects and t#eir "ro)ect location t#at com"lied be+ore entering

t#e a""eals s%stem and w#et#er t#e% en#anced?did not en#ance in com"liance wit# $ection =A a+ter

leaving t#e a""eals s%stem3

Lo"ation Appeals that

"omplie%

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

remitte%

5ascoyne 22 + + + 22

5oldfields + + + + +

5reat outhern & 1 1 # +

Vimberley 1+ 2 0 +

=id *est # 1 + 0 +

$eel + + + + +

$ilbara 2J 0 1/ J +

outh *est 21 / 0 11 +*heatbelt + + + + +

$erth & 0 1 2 +

"otal J( 2+ 2# 02 22

01


32/93

able . 5umber o+ a""eals +rom "ro)ects and t#eir "ro)ect location t#at did not com"l% be+ore

entering t#e a""eals s%stem and w#et#er t#e% en#anced?did not en#ance in com"liance wit# $ection

=A a+ter leaving t#e a""eals s%stem3


%i%n:t "omply

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

remitte%

5ascoyne + + + + +


5reat outhern + + + + +

Vimberley 2 + + 2 +

=id *est 1 + + 1 +

$eel + + + + +$ilbara 21 1 J 11 +

outh *est 0 + + 0 +

*heatbelt + + + + +

$erth 1 + + 1 +

"otal 2( 1 J 1( +

02


33/93

5raph 1 is a stacked bar graph which compares the percentage of appeals against pro)ects and their

locations with compliance with ection #% before entering the appeals system. 5raph 2 is a stacked

bar graph which compares the percentage of appeals against pro)ects and their locations with

compliance with ection #% after leaving the appeals system. "hese graphs reflect the results from

"ables # and .

00


34/93

0#

Gascoyne

Goldfields

Great Southern

Kimberley

Mid West

Peel

Pilbara

South West

Wheatbelt

Perth

Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison &ercenta'e of &ro(ect locations )ith Section 4* before enterin' the a&&eals system

Percenta'e of a&&eals that com&lied before enterin' the a&&eals system

Percenta'e of a&&eals that did not com&ly )ith before enterin' a&&eals system

Percenta'e

P

ro(ectlocation

ra"# 1. $taced bar gra"# dis"la%ing t#e "ercentage o+ a""eals +rom "ro)ects wit# t#eir

locations and t#eir com"liance wit# $ection =A be+ore entering t#e a""eals s%stem3


35/93

0

Gascoyne

Goldfields

Great Southern

Kimberley

Mid West

Peel

Pilbara

South West

Wheatbelt

Perth

Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison of Pro(ect a&&eals from locations after lea+in' the a&&eals system

Percenta'e of a&&eals that com&lied and enhanced in com&liance

Percenta'e of a&&eals that did com&ly and diminished in com&liance

Percenta'e of a&&eals that did com&ly and remained the same in com&liance

Percenta'e of a&&eals from &ro(ects ) ere ) ithdra) n or remitted that did not com&ly before

Percenta'e of a&&eals from &ro(ects that did not com&ly and enhanced in com&liance

Percenta'e of a&&eals that did not com&ly and diminished in com&liance

Percenta'e of a&&eals that did not com&ly remained the same in com&liance

Percenta'e of a&&eals from &ro(ects ) ere ) ithdra) n or remitted that did com&ly before

Percenta'e

Pro(ectlocations

ra"# . $taced bar gra"# dis"la%ing t#e "ercentage o+ a""eals +rom "ro)ects wit# t#eirlocations and t#eir com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3


36/93

om"arison o+ "ro)ects wit# a""eals wit# "ro)ect t%"e and $ection =A.

"able & shows the number of appeals against pro)ects with the different pro)ect types that complied

with ection #% before entering the appeals system. "he table demonstrates how many of those

appeals against pro)ects enhanced or diminished the pro)ects in compliance with ection #% after

leaving the appeals system. =ost of pro)ects were of Iron Ore, 5as, *ater upply and olar alt

:ield type. :or Iron Ore pro)ects, /+R of appeals against appeals diminished the pro)ects in

compliance. :or 5as pro)ects, most of the appeals against pro)ect diminished the pro)ects in

compliance with #1R of appeals. "he 1+R of appeals that enhanced in compliance all came from

the cott Heef =a


37/93

able 6. 5umber o+ a""eals against "ro)ects wit# t#e "ro)ect t%"e t#at com"lied be+ore and w#et#er

t#e% en#ance?did not en#ance in com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3

Proe"t type Appeals that

"omplie%

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

remitte%

'hemical + + + + +

Iron Ore 1+ 1 / 2 +

$ort J 0 1 +

=ineral ands + + + + +

ilicon + + + + +

5as 2J / 12 1+ +

"own $lanning 2 1 + 1 +

$ower tation + + + + +

=olybdenum + + + + +

*astewater 1 + + 1 +

%lumina

Hefinery

+ + + + +

Infrastructure + + + + +

*ater upply 22 / 0 12 +

eismic

urvey

+ + + + +

Landfill + + + + +

olar alt :ield 22 + + + 22

:ishing 1 + + 1 +

Hesidential 1 1 + + +

%griculture + + + + +

5ypsum + + + + +"ourism 1 + + 1 +

"otal J( 2+ 2# 02 22

0/


38/93

able 7. 5umber o+ a""eals against "ro)ects wit# t#e "ro)ect t%"e t#at com"lied be+ore and w#et#er

t#e% en#anced?did not en#ance in com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3


%i%n:t "omply

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

remitte%

'hemical + + + + +

Iron Ore ( + ( + +

$ort 1 + + 1 +


ilicon + + + + +

5as 1# 1 1 12 +

"own $lanning + + + + +



*astewater + + + + +

%lumina

Hefinery

+ + + + +


*ater upply 0 + + 0 +

eismic

urvey

+ + + + +

Landfill + + + + +

olar alt :ield + + + + +

:ishing + + + + +

Hesidential + + + + +


5ypsum + + + + +"ourism 2 + + 2 +

"otal 2( 1 J 1( +

0(


39/93

5raph 0 is a stacked bar graph which compares the percentage of appeals against pro)ects with the

pro)ect type and compliance with ection #% before entering the appeals system. 5raph # is a

stacked bar graph which compares the percentage of appeals against pro)ects and the pro)ect type

with compliance with ection #% after leaving the appeals system. 5raphs 0 and # demonstrate the

results of "ables & and /.

0J


40/93

#+

hemical

,ron -re

Port

Mineral sands

Silicon

Gas

To) n Plannin'

Po) er Station

Molybdenum

Waste) ater

*lumina .ef inery

,nfrastructure

Water Su&&ly

Seismic Sur+ey

/andfill

Solar Salt ield

ishin'

.esidential

*'r icultureGy&sum

Tourism

Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison &ercenta'e of &ro(ect ty&es )ith Section 4* before enterin' the a&&eals system



Percenta'e

Pro(ectty&e

ra"# @. $taced bar gra"# dis"la%ing t#e "ercentage o+ a""eals +rom "ro)ects wit# t#eir "ro)ect

t es and t#eir com liance wit# $ection =A be ore enterin t#e a eals s stem3


41/93

#1

hemical

,ron -re

Port

Mineral sands

Silicon

Gas

To) n Plannin'

Po) er StationMolybdenum

Waste) ater

*lumina .efinery

,nfrastructure

Water Su&&ly

Seismic Sur+ey

/andfill

Solar Salt ield

ishin'

.esidential

*'riculture

Gy&sum

Tourism

Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison &ercenta'e of &ro(ect ty&es )ith Section 4* after lea+in' the a&&eals system

Percenta'e of a&&eals that com&lied and enhanced in com&liancePercenta'e of a&&eals that did com&ly and diminished in com&liance


Percenta'e of a&&eals from &ro(ects )ere )ithdra)n or remitted that did com&ly before

Percenta'e of a&&eals that did not com&ly and enhanced in com&liance

Percenta'e of a&&eals that did not com&ly and diminished in com&l iance


Percenta'e of a&&eals from &ro(ects )ere )ithdra)n or remitted that did not com&ly before

Percenta'e

Pro(ectty&e

ra"# =. $taced bar gra"# dis"la%ing t#e "ercentage o+ a""eals +rom "ro)ects wit# t#eir "ro)ect

t%"es and t#eir com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3


42/93

om"arison o+ a""eals against "ro)ects wit# a""ellant t%"e.

"able ( shows the total of appeals against pro)ects with the different appellant types that complied

with ection #% before entering the appeals system and how many of those appeals enhanced or

diminished the pro)ects in compliance after leaving the appeals system. "able J shows the total of

appeals against pro)ects with the different appellant types that did not comply with ection #%

before entering the appeals system and how many of those appeals enhanced or diminished the

pro)ects in compliance after leaving the appeals system. $rivate $roponents were from large

companies such as 'hevron and *oodside. "he 5overnment $roponents were the 'ity of

Hockingham and the *ater 'orporation. "hird $arty appellants were mostly from conservation

groups such as the 'onservation 'ouncil.

"able ( shows that most of the appeals against pro)ects are by $rivate $roponents. :or $rivate

$roponents, #+R of the appeals against the pro)ects were remitted back into the $% and 0(R of

appeals diminished the pro)ects in compliance. :or 5overnment $roponents, #0R of the appeals for

pro)ects did not change the pro)ects and they remained at the same level of compliance. 0+R of

appeals enhanced the pro)ects in compliance. "hese appeals came from the $ort Hockingham

=arina $ro)ect. 2&R of appeals diminished the pro)ects. :or appeals from pro)ects by "hird $arty

appellants, +R of the appeals did not change the pro)ects and they remained the same level of

compliance. 00R of appeals did enhance the compliance of the pro)ects. 10R of appeals remitted a

pro)ect back into the $%.

"able J shows that most of the appeals from pro)ects are by $rivate $roponents. :or appeals for

pro)ects by $rivate $roponents, R diminished the pro)ects in compliance. :or 5overnment

$roponents 1++R of appeals did not change the pro)ect and it remained at the same level of

compliance. "his appeal came from the outhern eawater 9esalination $lant $ro)ect. :or "hird

#2


43/93

$arty appellants, J2R of the appeals for pro)ects did not change the pro)ects and they remained at

the same level of compliance. (R of appeals did enhance the pro)ect in compliance and they came

from the =acedon $ro)ect.

#0


44/93

able 8. 5umber o+ a""eals against "ro)ects and t#e a""ellant t%"e t#at com"lied be+ore and

w#et#er t#e% en#anced?did not en#ance in com"liance wit# $ection =A a+ter leaving t#e a""eals

s%stem3

Appellant

Type

Appeals that

"omplie%

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

remitte%

$rivate

$roponents

# 0 1/ / 1(

5overnment

$roponents

20 / & 1+ +

"hird $arty

%ppellants

0+ 1+ 1 1 #

"otal J( 2+ 2# 02 22

able 9. 5umber o+ a""eals against "ro)ects and t#e a""ellant t%"e t#at did not com"l% be+ore and


s%stem3

Appellant

Type

Appeals that

%i%n:t "omply

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

remitte%

$rivate

$roponents

1# + J # +

5overnment

$roponents

1 + + 1 +

"hird $arty

%ppellants

10 1 + 10 +

"otal 2( 1 J 1( +

##


45/93

5raph is a stacked bar graph which compares the percentage of appeals against pro)ects with the

appellant type with ection #% before entering the appeals system. 5raph & is a stacked bar graph

which compares the percentage of appeals against pro)ects with the appellant type with ection #%

after leaving the appeals system. "hese graphs reflect the results from "ables ( and J.

#


46/93

#&

Pro&onent Pri+ate

Pro&onent Go+ernment

*&&ellant Third Party

Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison &ercenta'e of a&&ellant ty&es )ith Section 4* before enterin' the a&&eals system



Percenta'e

*&&ellantty&e

ra"# . $taced bar gra"# dis"la%ing t#e "ercentage o+ a""eals +rom "ro)ects wit# t#eir

a ellant t es and t#eir com liance wit# $ection =A be ore enterin t#e a eals s stem3


47/93

#/

Pro&onent Pri+ate



Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison &ercenta'e of a&&ellant ty&es )ith Section 4* after lea+in' the a&&eals system









Percenta'e

*&&ellantty&e


a""ellant t%"es and t#eir com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3


48/93

How t#e a""eals en#ance, diminis# or not c#ange t#e "ro)ects in com"liance wit# $ection =A.

=ost of the appeals against pro)ects did not change the pro)ects in compliance and they remained at

the same level of compliance. ;owever for pro)ects from the $ilbara region, most of the appeals did

diminish the pro)ects. =ost of the pro)ects from the $ilbara region were of 5as and Iron Ore type

and most of them diminished in compliance from the appeals. :or both Iron Ore and 5as pro)ects in

which compliance was diminished, they diminished through the weakening of conditions in regards

monitoring re?uirements and the protection of flora and fauna. ome of the 5as and Iron Ore

pro)ects diminished in compliance through the reversing of decisions by the $% that originally

found a part of the pro)ect environmentally unacceptable. :or many of the 5as pro)ects that

diminished, the appeals diminished the conditions for the protection of turtles and their coral

habitat. :or both Iron Ore and 5as pro)ects, many of the pro)ects were enhanced through the

strengthening of monitoring conditions and management plans. 5as pro)ects for one pro)ect in

particular were enhanced by clarifying the coordinates of the pro)ect to prevent environmentally

significant areas from being damaged. =ost of the pro)ects from 5as and Iron Ore pro)ects in the

$ilbara were also from $rivate $roponents. "here were lots of appeals by "hird $arty appellants for

these pro)ects as well.

"here were many appeals that came from the outh *est. %ll these appeals were of the *ater

upply type of pro)ect. %ll the appeals came from the outhern eawater 9esalination $lant $ro)ect.

=ost of the of appeals did not change the pro)ect in compliance. "he pro)ect diminished in

compliance through the decreasing the of monitoring re?uirements for water health. "his pro)ect

was enhanced in compliance by some of the appeals through strengthening of conditions in regards

to protection of marine fauna.

In the Vimberley most of the appeals against pro)ects enhanced the pro)ects in compliance. "he

#(


49/93

appeals that enhanced the pro)ects in compliance were through the strengthening of monitoring

conditions for fauna. "he appeals from the Vimberley that diminished the pro)ects in compliance

were through the reversing of $% decisions in which the $% originally decided that seismic

surveying between the months of October and %pril was not environmentally acceptable. %ll the

appeals from the 5ascoyne were of the olar alt :ield type of pro)ect and they were all remitted

back into the $%. "hese appeals were remitted back to the $% so they could be looked at again

afresh. %ll these appeals came from the 6annarie olar alt $ro)ect. "here were "hird $arty and

$rivate $roponent appellants who had appeals against the 6annarie olar alt $ro)ect.

:or 5overnment $roponents, most of the appeals against pro)ects did not change the pro)ects and

they remained at the same level of compliance. "he appeals from 5overnment $roponents came

from the $ort Hockingham =arina $ro)ect and the %lbany $ort


50/93

5umber o+ 5ative errestrial Begetation a""eals against "ro)ects.

"able 1+ displays the number of appeals against pro)ects between 2++& and 2+1+. 8etween those

years there was J+ appeals. "able 11 shows the total of appeals against pro)ects that complied with

ection #% before entering the appeals system. "he table demonstrates how many those appeals

enhanced or diminished the pro)ects in compliance with ection #% after leaving the appeals

system. "able 12 shows the total of appeals against pro)ects that did not comply with ection #%

before entering the appeals system. "he table demonstrates how many of those appeals that

enhanced or diminished the pro)ects in compliance with ection #% after leaving the appeals

system.

'omparing "able 11 and 12, they show that for most of the appeals against pro)ects did comply

before entering the appeals system. In "able 11 most of the appeals did not enhance the pro)ects in

compliance with 0(R of appeals that did not change the pro)ects and 12R of appeals that

diminished the pro)ects in compliance. #(R of appeals did enhance the pro)ects in compliance.

"able 12 shows that &/R of appeals did not change their pro)ects and they remained at the same

level of compliance. 00R of appeals did enhance the pro)ects in compliance. It must be mentioned

that most of the pro)ects that remained at the same level in compliance were because their appeals

were dismissed.

+


51/93

able 1:. 5umber o+ a""eals in eac# %ear between ::6 and :1:3

8ear 9um,er of appeals

2++& 1#

2++/ (

2++( 1/

2++J 20

2+1+ 2(

able 11. 5umber o+ a""eals against "ro)ects t#at com"lied be+ore and w#et#er t#e% en#anced?did

not en#ance in com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3

Appeals that

"omplie%

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

.ith%ra.n

(1 0J 1+ 01 1

able 1. 5umber o+ a""eals against "ro)ects t#at did not com"l% be+ore and w#et#er t#e%

en#anced?did not en#ance in com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3

Appeals that

%i%n:t "omply

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

.ith%ra.n

J 0 + & +

1


52/93

om"arison o+ a""eals +rom "ro)ects wit# t#eir location.

"able 10 shows the total of appeals against pro)ects from the different locations that complied with

ection #% before entering the appeals system. "able 1# shows the total of appeals against pro)ects

from the different locations that did not comply with ection #% before entering the appeals system.

"ables 10 and 1# demonstrate how many of those appeals enhanced or diminished their pro)ects in

compliance with ection #% after leaving the appeals system.

In "able 10, most of the appeals from pro)ects came from the =id *est, $ilbara and the *heatbelt.

:or appeals located at the =id *est, +R of appeals enhanced the pro)ects and 2JR of appeals

diminishing their pro)ects in compliance and 21R of appeals that did not change their pro)ects. %ll

the appeals that diminished the pro)ect in compliance came from the =ount 5ibson Iron Ore =ine

$ro)ect. :rom the $ilbara, /R of appeals enhanced the pro)ects in compliance. 1#R of appeals did

diminish the pro)ects in compliance. 2JR of appeals did not change their pro)ects and they

remained at the same level of compliance. :rom the *heatbelt, /R of the appeals enhanced the

pro)ects in compliance. 0&R of appeals did not change the pro)ects and they remained at the same

level of compliance. #R of appeals diminished the pro)ect in compliance and #R of appeals from a

pro)ect was withdrawn. "he appeals that diminished the pro)ect in compliance came from the

Voolyanobbing Iron Ore $ro)ect. "he pro)ect that contained the appeal that was withdrawn was the

Voolyanobbing Iron Ore ! *2 $it $ro)ect. :rom the 5oldfields, +R of appeals against pro)ects

enhanced the pro)ects in compliance and +R of appeals against pro)ects did not change the

pro)ects in compliance. "he pro)ect that was enhanced in compliance was the 'arina Iron Ore

$ro)ect.

In "able 1#, most of the appeals came from the =id *est, $ilbara, $eel and the *heatbelt. :rom the

=id *est 1++R of appeals did not change the Varara Iron Ore pro)ect and it remained the same

2


53/93

level of compliance. :rom the $eel 1++R of appeals enhanced the hire of *aroona "own $lanning

$ro)ect in compliance. :rom the $ilbara 1++R of appeals did not change their pro)ects and they

remained at the same level of compliance. :rom the *heatbelt, 1++R of appeals enhanced their

pro)ect in compliance. "he appeals came from the Voolyanobbing Iron Ore $ro)ect.

0


54/93

able 1@. 5umber o+ a""eals against "ro)ects wit# t#e "ro)ect location t#at com"lied and w#et#er



"omplie%

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

.ith%ra.n

5ascoyne + + + + +

5oldfields & 0 + 0 +

5reat outhern 0 + + 0 +

Vimberley + + + + +

=id *est 1# / # 0 +

$eel 2 + 2 + +

$ilbara 1# ( 2 # +

outh *est J 0 + & +

*heatbelt 2( 1& 1 1+ +

$erth 2 0 + +

"otal (1 0J 1+ 01 1

able 1=. 5umber o+ a""eals against "ro)ects wit# t#e "ro)ect location t#at did not com"l% and


s%stem3


%i%n:t "omply

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

remitte%

5ascoyne + + + + +


5reat outhern + + + + +

Vimberley + + + + +

=id *est 1 + + 1 +

$eel 1 1 + + +

$ilbara 0 + + 0 +

outh *est + + + + +

*heatbelt 0 1 + 2 +

$erth 1 1 + + +

"otal J 0 + & +

#


55/93

5raph / is a stacked bar graph which compares the percentage of appeals against pro)ects and the

location with ection #% before entering the appeals system. 5raph ( is a stacked bar graph which

compares the percentage of appeals against pro)ects and the location with ection #% after leaving

the appeals system. 5raphs / and ( demonstrate the results from "ables 10 and 1#.


56/93

&

Gascoyne

Goldfields

Great Southern

Kimberley

Mid West

Peel

Pilbara

South West

Wheatbelt

Perth

Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison &ercenta'e of &ro(ect locations )ith Section 4* before enterin' the a&&eals system



Percenta'e

/ocation

ra"# 7. $taced bar gra"# dis"la%ing t#e "ercentage o+ a""eals +rom "ro)ects wit# "ro)ectlocations and t#eir com"liance wit# $ection =A be+ore entering t#e a""eals s%stem3


57/93

/

Gascoyne

Goldfields

Great Southern

Kimberley

Mid West

Peel

Pilbara

South West

Wheatbelt

Perth

Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison of Pro(ect a&&eals from locations after lea+in' the a&&eals system









Percenta'e

/o

cation

ra"# 8. $taced bar gra"# dis"la%ing t#e "ercentage o+ a""eals +rom "ro)ects wit# "ro)ect

locations and t#eir com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3


58/93

om"arison o+ a""eals +rom "ro)ects wit# "ro)ect t%"e and $ection =A.

"able 1 shows the total of appeals against pro)ects with the different pro)ect types that complied

with ection #% before entering the appeals system. "able 1 demonstrates how many of those

appeals enhanced or diminished the pro)ects in compliance with ection #% after leaving the

appeals system. "able 1& shows the total of appeals against pro)ects with the different pro)ect types

that did not comply with ection #% before entering the appeals system. "able 1& also demonstrates

how many of those appeals enhanced or did not enhance the pro)ects in compliance with ection #%

after leaving the appeals system.

In "able 1 most of the appeals came from Iron Ore, =ineral ands, 5as and *ater upply pro)ects.

:or Iron Ore pro)ects, JR of appeals enhanced the pro)ects in compliance. 12R of appeals

diminished the pro)ects in compliance. 2/R of appeals did not change the pro)ects so that they

remained at the same level of compliance. :or =ineral ands pro)ects, &0R of appeals did not

change the pro)ects and they remained at the same level of compliance. 0(R of appeals enhanced

the pro)ects in compliance. :or 5as pro)ects, +R of the appeals did not change the pro)ects and

they remained at the same level of compliance and +R of appeals did diminish the pro)ect in

compliance. "he pro)ect that diminished in compliance was the 9evils 'reek 9evelopment $ro)ect.

:or *ater upply type pro)ects, all of the appeals came from the outhern eawater 9esalination

$ro)ect. /R of the appeals did not change the pro)ect in compliance and 2R of the appeals did

enhance the pro)ect in compliance.

In "able 1& the most of the appeals came from Iron Ore and 5as pro)ects. :or Iron Ore pro)ects,

(+R of appeals did not change the pro)ects and they remained at the same level of compliance.

"here were 2+R of appeals that enhanced the pro)ect in compliance. "he pro)ect that was enhanced

in compliance was the Voolyanobbing Iron Ore $ro)ect. :or 5as pro)ects, 1++R of appeals did not

(


59/93

change their pro)ects and they remained at the same level of compliance.

able 1. 5umber o+ a""eals against "ro)ects wit# t#e "ro)ect t%"e t#at com"lied be+ore entering

t#e a""eals s%stem and t#e number t#at en#anced?did not en#ance in com"liance wit# $ection =A

a+ter leaving t#e a""eals s%stem3


"omplie%

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

.ith%ra.n

'hemical + + + + +

Iron Ore 1 0+ & 1# +

$ort + + + + +

=ineral ands ( 0 + +

ilicon 2 2 + + +

5as # + 2 2 +

"own $lanning 1 + + 1 +


=olybdenum 1 1 + + +


%lumina

Hefinery

+ + + + +

Infrastructure + 2 0 +

*ater upply # 1 + 0 +

eismic

urvey

+ + + + +

Landfill 2 2 + + +


:ishing + + + + +

Hesidential + + + + +

%griculture 0 + + 0 +

5ypsum + + + + +

"ourism + + + + +

"otal (1 0J 1+ 01 1

J


60/93

able 16. 5umber o+ a""eals against "ro)ects and t#e "ro)ect t%"e t#at did not com"l% be+ore

entering t#e a""eals s%stem and t#e number t#at en#anced?did not en#ance in com"liance wit#

$ection =A a+ter leaving t#e a""eals s%stem3


%i%n:t "omply

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

.ith%ra.n

'hemical + + + + +

Iron Ore 1 + # +

$ort + + + + +


ilicon + + + + +

5as 2 + + 2 +"own $lanning 1 1 + + +




%lumina

Hefinery

+ + + + +


*ater upply + + + + +

eismic

urvey

+ + + + +

Landfill + + + + +


:ishing + + + + +

Hesidential 1 1 + + +


5ypsum + + + + +

"ourism + + + + +

"otal J 0 + & +

&+


61/93

5raph J is a stacked bar graph which compares the percentage of appeals against pro)ects and the

pro)ect types with ection #% before entering the appeals system. 5raph 1+ is a stacked bar graph

which compares the percentage of appeals against pro)ects and the pro)ect types with ection #%

after leaving the appeals system. 5raphs J and 1+ demonstrate the results from "ables 1 and 1&.

&1


62/93

&2

hemical

,ron -re

Port

Mineral sands

Silicon

Gas

To)n Plannin'

Po)er Station

MolybdenumWaste)ater

*lum ina .efinery

,nfrastructure

Water Su&&ly

Seismic Sur+ey

/andfill

Solar Salt ield

ishin'

.esidential

*'riculture

Gy&sum

Tourism

Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison of Pro(ect a&&eals and their &ro(ect ty&es before enterin' the a&&eals system



Percenta'e

Pro(ectty&e

ra"# 9. $taced bar gra"# dis"la%ing t#e "ercentage o+ a""eals +rom "ro)ects o+ "ro)ect t%"es

and t#eir com"liance wit# $ection =A be+ore entering t#e a""eals s%stem3


63/93

&0

hemical

,ron -re

Port

Mineral sands

Silicon

Gas

To) n Plannin'Po) er Station

Molybdenum

Waste) ater

*lumina .ef inery

,nfrastructure

Water Su&&ly

Seismic Sur+ey

/andfill

Solar Salt ield

ishin'

.esidential

*'riculture

Gy&sum

Tourism

Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison of Pro(ect a&&eals and their &ro(ect ty&es after lea+in' the a&&eals system



Percenta'e of a&&eals that did com&ly and remained the same in com&liancePercenta'e of a&&eals from &ro(ects ) ere ) ithdra)n or remitted that did com&ly before


Percenta'e of a&&eals that did not com&ly and diminished in com&liance


Percenta'e of a&&eals from &ro(ects ) ere ) ithdra)n or remitted that did not com&ly before

Percenta'e

Pro(ectty&e

ra"# 1:. $taced bar gra"# dis"la%ing t#e "ercentage o+ a""eals +rom "ro)ects o+ "ro)ect

t%"es and t#eir com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3


64/93

#e number o+ a""eals +or eac# a""ellant t%"e com"ared wit# $ection =A.

"able 1/ shows the total of appeals against pro)ects with the appellant types that complied with

ection #% before entering the appeals system. "able 1( shows the total of appeals against pro)ects

with the appellant types that did not comply with ection #% before entering the appeals system.

"he tables demonstrates how many of those appeals enhanced or diminished the pro)ects in

compliance with ection #% after leaving the appeals system. "hird $arty appellants came mostly

from conservation groups such as the 'onservation 'ouncil. $rivate $roponents came from mostly

large companies such as 'hevron and *oodside. "here were no 5overnment $roponents.

In "able 1/ for "hird $arty appellants, #(R of appeals did enhance the pro)ects in compliance. JR

of appeals diminished the pro)ects in compliance. #1R of appeals did not change the pro)ects and

they remained at the same level of compliance. :or $rivate $roponents, 1/R of appeals diminished

the pro)ects in compliance. 0#R of appeals did not change the pro)ects and they remained at the

same level of compliance. #JR of appeals from pro)ects did enhance the pro)ects in compliance.

"he pro)ect that contained the appeal that was withdrawn was the Voolyanobbing Iron Ore ! *2 $it

$ro)ect.

In "able 1( for "hird $arty appellants, +R of appeals enhanced the pro)ects in compliance. +R of

appeals did not change their pro)ects and they remained at the same level of compliance. :or $rivate

$roponents, 1++R of appeals did not change the pro)ects and they remained at the same level of

compliance.


65/93

able 17. 5umber o+ a""eals against "ro)ects and t#e a""ellant t%"e t#at com"lied and w#et#er


Appellant

Type

Appeals that

"omplie%

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

remitte%

$rivate

$roponents

0 1/ & 12 1

5overnment

$roponents

+ + + + +

"hird $arty

%ppellants

#& 22 # 1J 1

"otal (1 0J 1+ 01 +

able 18. 5umber o+ a""eals against "ro)ects and t#e a""ellant t%"e t#at did not com"l% and

w#et#er t#e% en#anced?did not en#ance in com"liance wit# $ection =A "rinci"les a+ter leaving t#e

a""eals s%stem3

Appellant

Type

Appeals that

%i%n:t "omply

Appeals that

enhan"e%

Appeals that

%iminishe%

Appeals that

%i%n:t "han&e

Appeals

remitte%

$rivate

$roponents

0 + + 0 +

5overnment

$roponents

+ + + + +

"hird $arty

%ppellants

& 0 + 0 +

"otal J 0 + & +

&


66/93

5raph 11 is a stacked bar graph which compares the percentage of appeals and the appellant types

with ection #% before entering the appeals system. 5raph 12 is a stacked bar graph which

compares the percentage of appeals and the appellant types with ection #% after leaving the

appeals system. 5raphs 11 and 12 demonstrate the results from "ables 1/ and 1(.

&&


67/93

&/

Pro&onent Pri+ate



Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison &ercenta'e of a&&ellant ty&es )ith Section 4* before enterin' the a&&eals system



Percenta'e

*&&e

llantty&e


a""ellant t%"es and t#eir com"liance wit# $ection =A be+ore entering t#e a""eals s%stem3


68/93

&(

Pro&onent Pri+ate



Total

0% 10% 20% 30% 40% 0% !0% "0% #0% $0% 100%

om&arison &ercenta'e of a&&ellant ty&es )ith Section 4* after lea+in' the a&&eals system





Percenta'e of a&&eals that did not com&ly and enhanced in com&liancePercenta'e of a&&eals that did not com&ly and diminished in com&liance



Percenta'e

*&&ellantty&e


a""ellant t%"es and t#eir com"liance wit# $ection =A a+ter leaving t#e a""eals s%stem3


69/93

How did t#e a""eals en#ance, diminis# or not c#ange t#e "ro)ects in com"liance wit# $ection =A.

=ost appeals

The Value of the Appeals System in the Environmental Protection Act (1986) WA - Oskar Lim Honours...

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Transcript of The Value of the Appeals System in the Environmental Protection Act (1986) WA - Oskar Lim Honours...