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

The value of the appeals system in the Environmental Protection Act
(1986) WA
Oskar Lim
30404317
Supervisor Professor John Bailey
School of Environmental Science
Faculty of Science and Engineering
Murdoch University 2012
Declaration:
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
Table of Contents:
Abstract
Acknowledgements
Chapter 1. Introduction
Chapter 2. Literature Review
11
2.1 Environmental decision-making
11
The different methods of reviewing environmental decisions

14
The history of the appeals system in the EP Act
16
Criticisms of the current appeals system

18
Chapter 3. Methods
20
Chapter 4. Results and Discussion
28
Projects containing Waterways appeals between 2006 and 2010
28
Projects containing Native Terrestrial Vegetation appeals between 2006 and 201050
Chapter 5. Conclusion
5.1 Projects containing Waterways appeals
71
5.2 Projects containing Native Terrestrial Vegetation appeals
71
5.3 Projects containing Native Terrestrial Vegetation appeals

5.4 Why the majority of appeals from projects complied with Section 4A before entering the
appeals system
5.5 Should the current appeals system be reformed?
72
73
Bibliography
76
Appendix
87
Abstract:
The appeals provisions of the Environmental Protection Act 1986 (WA) is an avenue that allows for
those affected by decisions made by the Environmental Protection Authority in regards to proposals
to raise their objections. The appeals provisions are an important part of environmental impact
assessment which is also under the Environmental Protection Act 1986 (WA). The 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 projects that are appealed against.
This thesis uses the principles of Section 4A in the Environmental Protection Act 1986 (WA) to
provide the criteria for the appeals to determine whether the appeals system is adding value or not
to projects subject to environmental impact assessment. In this thesis projects with Waterways and
Native Terrestrial Vegetation appeals are focussed on. The results from the thesis show that certain
projects were not enhanced in compliance after leaving the appeals system and were diminished in
compliance. Projects from the Pilbara and the Wheatbelt and Gas and Iron Ore projects 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 projects. The appeals
of those projects were a stark contrast to other types of projects such as Silicon and Landfill projects
where they were less likely to diminish in compliance. The reasons as to why certain projects
diminish in compliance and decrease in value will need further research. This thesis recommends
that the current ministerial merits review appeals system be reformed so that appeals under the
Environmental Protection Act 1986 (WA) go to the State Administrative Tribunal. The State
Administrative Tribunal has more procedural integrity and transparent accountability compared to
the current ministerial merits review system.
Acknowledgements:
This thesis is dedicated to the memory of Isabelle Lake who passed away this year from a long fight
with leukaemia. Your strength and bravery, particularly in the last few weeks of your life, continues
to inspire me. When I look to the stars, I always think of you.
I must thank my supervisor Professor John Bailey for his support (particularly when I felt like I was
going insane) and wisdom. The stuffed toys, particularly the puppets, in your office provided much
comfort. I must also thank Dr Joe Fontaine for teaching ENV523. He did an excellent job and I
thoroughly enjoyed his unit. I must also thank Dr Philip Ladd for his support when I needed it. I
must thank the Office of the Appeals Convenor and the Environmental Protection Authority for
providing all the documents I needed. That made for fun (and not so fun) night time reading.
I must thank my family (including Mmrr the cat) for being the best. Sorry if I was cranky a lot, it is
not my usual nature. I must also thank my friend Manual Door for being a 'bro' and for always
being there. I must thank Adelia, Lauren Croser and Nikita Steele for providing support when I
needed it, particularly when I needed a cup of tea late at night or a late night Simpsons marathon. To
quote Homer Simpson from the Simpsons TV show, "It's not enough to want a cracker, you have to
earn it." I must also thank Sophie Hesford and the entire Hesford 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 Velvet Cabaret for all the fun times I had helping you guys with your burlesque acts. They
provided much joy for me during the stressful times of writing this thesis. In particular I must thank
Sugar Du Joure for teaching me the art of stripper pants and bejewelling boxers. Lastly, I must
thank my old folks for all the fun times and for teaching this young kid a thing or two. Hopefully
I proved you can teach an old dog new tricks.
Chapter 1. Introduction:
The Environmental Protection Act 1986 (WA) (the EP Act) is the environmental legislation under
which development proposals are referred in regards to Environmental Impact Assessment (EIA) 1.
For EIA, development proposals are referred to it if they will have a significant impact on the
environment if implemented2. The EP Act contains its object, provides for EIA, and prescribes an
appeals system.
The object of the EP Act is to protect the environment of WA, having regard to the principles of
Ecological Sustainable Development (ESD) outlined in Section 4A 3. The EP Act also states the
object of the Environmental Protection Authority (EPA) is to protect the environment and to
prevent, control and abate pollution and environmental harm 4. Section 4A'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.
The long title of the EP Act also states the purpose of the EP Act. Long titles of legislation appear
on the first page after the contents pages and explain briefly the legislations purpose5. The long title
states that it is an Act to provide for an Environmental Protection Authority, for the prevention,
control and abatement of pollution and environmental harm, for the conservation, preservation,
protection, enhancement and management of the environment and for matters incidental to or
1
2
3
4
5
Environmental Protection Act 1986 (WA) s38.

Ibid.
Ibid, s4A.
Ibid, s15.
Department of the Attorney General, How to read legislation, a beginner's guide
<http://www.department.dotag.wa.gov.au/_files/How_to_read_legislation.pdf>.
connected with the foregoing6.
Provisions for Environment Protection Policies (EPPs), EIA and Environmental Regulation are
found in the EP Act. EPPs are statutory policies developed under Part III of the EP Act 7. They are
whole-of-Government policies that are ratified by Parliament and they have the force of law from
the day they are published in the WA Government Gazette 8. EPPs are developed, for instance, to
establish environmental values and environmental quality objectives for a particular environment or
component of the environment. Regulations can be made under Schedule 2 of the EP Act 9. The
Governor may make regulations prescribing all matters that are required or permitted by this Act to
be prescribed, or are necessary or convenient to be prescribed, for giving effect to the purposes of
this Act.10
Part IV of the EP Act contains the provisions for EIA. EIA is a form of environmental decisionmaking11. Part IV gives the EPA the responsibility for EIA 12. EIA is a systematic and orderly
evaluation of a proposal and its impact on the environment 13. The assessment includes considering
ways in which the proposal, if implemented, could avoid or reduce any impact on the environment.
For EIA provisions under the EP Act, development proposals are referred to the EPA to be
assessed14. Any person can refer a development proposal to the EPA 15. If the EPA decides to assess
the proposal that has been referred to it, the EPA will prepare a report to be given to the Minister 16.
6
7
8
9
10
11
12
13
14
15
16
Environmental Protection Act 1986 (WA), above n 1, long title.

Ibid, Part III.
Environmental Protection Authority, Environmental Protection Policies,
<http://www.epa.wa.gov.au/Policies_guidelines/envprotecpol/Pages/SiteLanding.aspx>.
Environmental Protection Act 1986 (WA), n 1, Schedule 2.
Ibid, s 123.
Ronnie Harding, Carolyn Hendriks and Mehreen Faruqi, Environmental Decision-making, (The Federation Press,
2009), 164.
Environmental Protection Act 1986 (WA), n 1, s 38.
Environmental Protection Authority, EIA Process, <http://www.epa.wa.gov.au/eia/assessdev/Pages/default.aspx>.
Above, n 1, s 38.
Ibid.
Ibid, s 44.
This EPA report will detail what the EPA considers the key environmental factors of the proposal
are, whether they believe the proposal should be implemented and any recommendations the EPA
believes the proposal should be subject to 17. After this EPA report is published, the Minister can
make the decision on whether or not the proposal should be implemented 18. EIA is a crucial part of
the EP Act.
Part VII of the EP Act contains the provisions for an appeals system which are important in regards
to EIA19. The appeals provisions are a form of ministerial merits review where the Minister makes
the final decision on each appeal in regards to the merits of the decision 20. In Section 100 it
contains the types of appeals that may be lodged in regards to proposals. Any person may appeal to
the Minister on a decision made by the EPA not to assess a proposal, other than a decision that
includes a recommendation that the proposal be dealt with under Part V Division 2 of the Act 21, the
content of or any recommendation in the report prepared under section 44 in respect of a proposal,
or the content of22 or any recommendation in, the report prepared under section 48D in respect of a
scheme23.
Before the appeal goes to the Minister, the Appeals Convenor (the Convenor) writes a report with
their recommendations to be given to the Minister 24. When the Minister receives the Convenor's
report they make a decision on the appeals to which that report relates 25. Section 101 details the
powers of the Minister in respect to appeals lodged under section 100, and for appeals in regards to
17
18
19
20
21
22
23
24
25
Ibid, s 45.
Ibid.
Peter Johnson, A Discussion Paper on the Appeals System under the Environmental Protection Act (1991),
Environmental Protection Authority <http://epa.wa.gov.au/EPADocLib/503_B540.pdf>, 1.
Declan Doherty, 'The merits of Western Australia's Environmental appeals regime' (2010) 29(1) Australian
Resources and Energy Law Journal, 110, 115 <http://0search.informit.com.au.prospero.murdoch.edu.au/fullText;dn=20102535;res=AGISPT>.
Environmental Protection Act 1986, above n 1, s100(1)(a).
Ibid s100(1)(d).
Ibid s100(1)(e).
Ibid s106.
Ibid s107A(2).
the EPA report and recommendations the Minister has the power to either accept or dismiss the
appeal, remit the proposal to the EPA or vary the EPA's recommendations and conditions 26. The
Minister's decision is final27. The provisions for appeals is vital for EIA as it increases
accountability and transparency of the system as well as public participation in the EIA process28.
For EIA to be effective, the object of the appeals system should be that it is clear, easy to
understand, it must allow for all parties affected to be heard and above all it should comply with the
principles of natural justice29. According to the second reading speech of the Environmental
Protection Bill, the EP Act was to provide a clear and easy appeals system to ensure that no section
of the community is disadvantaged30. The administration of the appeals system will have to comply
with the long title as well as the object and principles in Section 4A. It is important to evaluate
whether the appeals system as it currently stands is complying with these principles because if it is
not, then we can argue that the appeals system needs to be improved.
This thesis focusses on the appeals provisions under Part VII to determine whether the current
appeals provisions adds value to the projects. Value was determined whether the projects before
they entered the appeals system were complying with Section 4A's object and principles and
whether these projects left the appeals system enhanced or not enhanced in compliance with Section
4A. We want to determine whether the appeals provisions are delivering better environmental
outcomes from EIA for projects through enhanced compliance with Section 4A. If the appeals
provisions are not having regard to Section 4A, it can be determined that the appeals provisions is
not adding value to the projects it oversees. If the appeals provisions are not delivering better
26
27
28
29
30
Ibid s101.
Ibid s101(1)(e).
Angus Morrison-Saunders and Gerald Early, 'What is necessary to ensure natural justice in environmental impact
assessment decision-making?' (2008) 26(1) Impact Assessment and Project Appraisal 29, 33
<http://researchrepository.murdoch.edu.au/1584/1/ms4.pdf>.
Peter Johnson, above n 19, 1.
Western Australia, Parliamentary Debates, Legislative Assembly, 24 July 1986, 2538 (Mr Hodge, Minister for
Environment).
environmental outcomes, it needs to be determined why and how this could be improved.
To determine whether the appeals provisions adds value to the projects, the projects were followed
from their beginning right to the end for appeals under Section 100 between the years of 2006 and
2010. The appeals were followed from the beginning with the EPA reports, through to the decisions
made by the Convenor and the Minister in regards to those projects that the appeals were against to
determine whether projects were enhanced in compliance with Section 4A to determine whether the
appeals system is adding value to the projects 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
Section 4A's principles and they are delivering better environmental outcomes. It is hoped that it is
determined whether the current appeals provisions could be improved.
10
Chapter 2. Literature Review:

The purpose of this chapter is to provide a theoretical context for the study and what is already
known about the topic this thesis is focussed on. Environmental decision-making is defined and the
different methods of environmental decision-making are described. A brief history of the appeals
system is discussed as well as the principles from Section 4A of the EP Act. Criticisms of the
current appeals system is also discussed.
2.1 Environmental decision-making:

Originally environmental decision-making was based upon and derived from the common law 31.
Since the 20th century, particularly since the 1960s, environmental decision-making has come into
the sphere of newly created legislation32. In Australia, the executive government decision-makers
such as Ministers and statutory authorities play a central role in environmental decision-making 33.
Australian courts can still have a role in reviewing EIA decisions through judicial review and
holding executive decision-makers accountable34.
EIA is one form of environmental decision-making that is used in Australian legislation. EIA helps
address the uncertainties and complexities that can arise from environmental decision-making 35.
EIA can be defined as a systematic process that examines the environmental consequences of
development actions in advance36. EIA should provide the basis for environmentally sound
31
32
33
34
35
36
11
Harold Leventhal, 'Environmental decision-making and the role of the courts' (1974) 122(3) University of
Pennsylvania Law Review 509, 509. <http://0-www.jstor.org.prospero.murdoch.edu.au/stable/pdfplus/3311540.pdf?
acceptTC=true>.
Ibid.
Jason Cabarrs, 'Merits review of Commonwealth environmental decision-making' (2009) 26 Environmental and
Planning Law Journal 113, 113. http://0-legalonline.thomson.com.au.prospero.murdoch.edu.au/subscribed/staticfs/journals/EPLJ/LAWREP-026-EPL-JL-0113.pdf?sessionId=b0b744380ade6d0543ece62630018c10.
Harold Leventhal, above n 31, 509.
Ronnie Harding, Carolyn Hendriks and Mehreen Faruqi, above n 11, 164.
John Glasson, Riki Therivel, Andrew Chadwick, Introduction to Environmental Impact Assessment, (Taylor &
Francis, 3rd ed, 2005), 4.
decision-making where the terms and conditions are specified and enforced37.
There are numerous principles that environmental decision-making should adhere to. However, it
must at the very least adhere to natural justice 38. The two primary principles of natural justice 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 39. Eight other principles have been identified
that are considered instrumental for an effective EIA system; these are participation, transparency,
certainty, accountability, integrity, cost-effectiveness, flexibility, and practicality40. Some of these
key principles are described in more detail below.
The principles of transparency and accountability are considered very important as was mentioned above.
Accountability can be defined as the state of being accountable, an obligation or willingness to accept
responsibility or to account for one's actions41. Transparency can be defined as a lack of hidden agenda
and conditions, accompanied by the availability of full information required for collaboration,
cooperation and collective decision-making42. Accountability and transparency go hand in hand as
transparency in the EIA helps provide for accountability to participants and stakeholders, and makes the
EIA decision-makers accountable43.
Public participation within the environmental decision-making process is critical and can increase
the accountability of environmental decisions44. Effective public participation in the taking of
37
38
39
40
41
42
43
44
12
Sadler, B 1996 Environmental Assessment in a Changing World: Evaluating Practice to Improve Performance
(Final Report, International Study of the Effectiveness of Environmental Assessment), International Association for
Impact Assessment and the Canadian Environmental Assessment Agency, Minister of Supply and Services, Hull,
Quebec, 23.
Angus Morrison-Saunders and Gerald Early, above n 28, 29.
Roger Douglas, Administrative Law, (LexisNexis Butterworths, 2nd ed, 2004), 176.
Environmental Protection Agency (Australia), Public review of the Commonwealth Environment Impact Assessment
process, (Commonwealth Environmental Protection Agency, 1994), 15.
Merriam-Webster Dictionary. (2011) Meriam-Webster <http://www.merriamwebster.com/dictionary/accountability>.
Business Dictionary. (2011) Business Dictionary http://www.businessdictionary.com/definition/transparency.html>.
Angus Morrison-Saunders and John Bailey, 'Transparency in environment impact assessment decision-making:
Recent developments in Western Australia' (2000) 18(4) Impact Assessment and Project Appraisal 260, 261
<http://researchrepository.murdoch.edu.au/1613/1/ms10.pdf>.
LeRoy Paddock, 'Environmental accountability and public involvement' (2004) 21(2) Pace Environmental Law
decisions enables the public to express, and the decision-maker to take account of, opinions and
concerns which may be relevant to those decisions, thereby increasing the accountability and
transparency of the decision-making process and contributing to public awareness of environmental
issues and support for the decisions taken45. Angus Morrison-Saunders and Gerald Early argued
that calls for public comment and public participation in decisions increased the accountability and
transparency of environmental decisions46. They also argued that the one of the most important
ways for there to be accountability and transparency in environmental decision-making is through
the right of appeal against the decisions47.
The right to appeal against a decision made through EIA increases accountability, public
participation and public confidence in the process and its outcomes48. Around the world
environmental resource agencies have seen an increase in the number of administrative and judicial
appeals filed against their decisions due to the increasing knowledge of environmental issues in the
public49. A report found that the third party rights of appeal against EIA are integral to the
transparency and accountability of the framework legislative scheme underpinning the industry selfmanagement philosophy of the EP Act50. The right to appeal increases accountability as it allows the
appellants to make the EIA decision-makers accountable for their decisions 51. The right to appeal
allows for increased public participation as it allows for the public to view the decision-maker's
45
46
47
48
49
50
51
13
Review 243, 243 <http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1149&context=pelr&seiredir=1#search=%22Environmental+accountability+and+public+involvemen%22>.

Nicola Hartley and Christopher Wood, Public Participation in environmental impact assessment implementing the
Aarhus Convention (2005) 25 Environmental Impact Assessment Review 319, 320
<http://mahabghodss.net/NewBooks/www/web/digital/nashrieh/Environmental%20Impact%20Assessment
%20Review/Vol.%2025,%20issue%204%20,%20May%202005/5/Public%20participation%20in%20environmental
%20impact%20assessment_implementing%20the%20Aarhus%20Convention.pdf>.
Morrison-Saunders and Early, above n 28, 29.
Ibid.
C Wood, Environmental Impact Assessment: A Comparative Review, (Harlow: Pearson Education Ltd, 2nd ed, 2004),
223.
Robert W Malmsheimer, Denise Keele & Donald W Floyd, 'National Forest Litigation in the US Courts of Appeals'
(2004) 102(2) Journal of Forestry, 20, 22
<http://www.ingentaconnect.com/content/saf/jof/2004/00000102/00000002/art00007>.
Uniform Legislation and Statutes Review Committee, Parliament of Western Australia, Standing Committee on
Uniform Legislation and Statutes Review (2009), 164.
Angus Morrison-Saunders and Gerald Early, above n 28, 33.
decisions and appeal against them if they are affected by them and this increases the public's
confidence in the system52. As the right to appeal is important for accountability, public participation
and public confidence, this shows that this an integral part of the EIA.
2.2 The different methods of reviewing environmental decisions:

There are several ways that environmental decisions can be reviewed and one of those ways is
through judicial review. Judicial review is a common law right53. Judicial review enables a person
disadvantaged by an administrative decision to seek review by a court on the lawfulness of that
decision54. The 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 55. As
judicial 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 56. As judicial review can only review a
decision to determine whether it was lawfully made, they can only examine some limited grounds
of appeal which are a breach of natural justice, an error of law or a failure to take into account a
relevant consideration57. Judicial review is considered by some to be unsuitable for environmental
decisions58. In WA because of the political nature of the appeals under EIA, judicial review is
considered unacceptable by some critics.59 Judicial review for decisions for EIA is available under
the common law against decisions made by the Minister if there is a legitimate ground of appeal
and the appellant has standing60.
52
53
54
55
56
57
58
59
60
14
Ibid.
Louis L Jaffe, 'The Right to Judicial Review' (1958) 71(3) Harvard Law Review, 401, 401
<http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hlr71&div=30&id=&page=>.
Fiona L McKenzie, Nature of Judicial Review (1 July 2010) The Law Handbook
<http://www.lawhandbook.org.au/handbook/ch21s02s01.php#>.
DE Fisher, Australian Environmental Law, (Lawbook Co, 2003) 447.
Nicole Dixon, 'Judicial Review of Environmental decision-making in Queensland' (1995) 3(1) Griffith Law Review,
94, 94 <http://www.austlii.edu.au/au/journals/GriffLawRw/1994/3.html>.
Fiona L McKenzie, above n 54, 4.
Uniform Legislation and Statutes Review Committee, above n 48, 160.
Ibid.
Declan Doherty, above n 20,15.
Quasi-judicial and merits review are the other ways that environmental decisions can be reviewed.
They only came about in the mid 20 th century61. These forms of review need to be provided for in
legislation62. These forms of review are considered more acceptable for the review of environmental
decisions63. Quasi-judicial review bodies have a partially judicial 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 courts 64. An example of this
is the Land and Environment Court (LEC) of NSW. The LEC is a specialist court with the power to
determine a wide range of environmental, development, building and planning disputes65. The
proceedings of the court reflect its quasi-judicial nature 66. The LEC has the power to rehear the
merits of an administrative decision by the original decision-maker 67. In exercising its merits review
role, the Court stands in the shoes of the original decision-maker in order to consider the application
on its merits68.
Merits review can be described as the process whereby an administrative decision of the
government is reviewed on the merits: that is, the facts, law and policy aspects of the original
decision are all reconsidered afresh and a new decision affirming, varying or setting aside the
original decision is made69. In WA in regards to appealing decisions under EIA, Ministerial merits
review rather than quasi-judicial review is provided for under the EP Act. The Minister has a dual
role as they are the ultimate decision-maker on approving proposals, and as the decision-maker for
61
62
63
64
65
66
67
68
69
15
Harold Leventhal, above n 31, 509.

Justice Stuart Morris, 'The Emergence of Administrative Tribunals in Victoria' (speech delivered at the Annual
General Meeting of the Victorian Chapter of the Australian Institute of Administrative Law Incorporated, 13
November 2003, Parliament House, Melbourne).
Declan Doherty, above n 20, 15.
Merriam-Webster Dictionary. (2011) Meriam-Webster. <http://www.merriam-webster.com/dictionary/quasijudicial> at 24 April 2011.
Land and Environment Court Jurisdiction (28 February 2011) Land and Environment Court
<http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_jurisdictionfull>.
Ibid.
Ibid.
Ibid.
Robin Creyke, 'The Criteria and Standards for Merit Review by Administrative Tribunals', (1998) 9 National Law
Review, 1, 1 <http://law.anu.edu.au/UnitUploads/LAWS8236-6494-MeritRcipl.PDF>.
merits appeals of decisions under the EP Act 70. The Minister takes account of the EPA report and
recommendations, any appeals and the report from the Convenor, and also consults with other
Ministers with statutory functions relevant to the development, and then determines what conditions
should be imposed upon the proponent71. Their decision is final and without appeal72.
In WA there is the State Administrative Tribunal (SAT), a quasi-judicial review tribunal. The SAT
was established in 2005 as an independent body that makes and reviews a range of administrative
decisions73. The SAT reviews administrative decisions made by a public official or local
government body regarding personal or commercial activities 74. The SAT also reviews decisions
made by regulatory bodies regarding licences to operate in an industry or profession 75. The appeals
from the EP Act were recommended to be moved to the SAT 76. However, the EP Act appeals were
one of the few Ministerial merits appeals that were not moved into the jurisdiction of the SAT77.
2.3 The history of the appeals system in the EP Act:

The current appeals system was introduced in the EP Act to overcome the criticism of the previous
act the Environmental Protection Act 1971 (WA) where there was no avenue for objecting to a
decision once it was made beyond judicial review on alleged errors of law 78. The current EP Act
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 79. The creators of the appeals
provisions decided to avoid make a rigid system80. Many aspects of the appeals system were left to
70
71
72
73
74
75
76
77
78
79
80
16

Ibid.
Ibid, s 101.
About SAT (2011) State Administrative Tribunal <http://www.sat.justice.wa.gov.au/A/about_sat.aspx?uid=57938155-0296-7651>.
Ibid.
Ibid.
Ibid.
Western Australia, Parliamentary Debates, Legislative Assembly, 24 July 1986, 2538 (Mr Hodge, Minister for
Environment).
administrative discretion in regards to the constitution of the appeals committee and its
procedures81. While the appeals system could have been considered quite open, it left a lot of scope
for setting up the appeals committees in different ways with functions appropriate to the particular
matter under review82.
In 1993, the role of the Convenor was created to coordinate all appeals under the EP Act and it was
only an administrative role at the time and was not added to the EP Act 83. The role of the Convenor
is to give advice and make recommendations to the Minister on appeals made under the EP Act84.
The 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 Convenor who was separate from the
Minister be introduced who would be in charge of dealing with appeals 85. The 2003 amendment of
the EP Act gave the Convenor statutory recognition86.
In 2010 there were more changes to the appeal system as a result of the Approvals and Related
Reforms (No. 1) (Environment) Act 2010 (WA). The objective of the amendment was to amend the
appeals system to remove duplicative or unnecessary appeal points, and to align appeal periods
across environmental regulation processes87. Appeals under Section 100(1)(a) 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 88. The amendment deleted Section 100(1)(b) to
preclude appeals on the level of assessment when the EPA has decided to assess a proposal 89. The
81
82
83
84
85
86
87
88
89
17
Ibid.
Ibid.
Western Australia, Parliamentary Debates (Hansard) Vol 306, 1993-94, 4279 (21 September 1993).
Environmental Protection Act, above n 1, s107B.
Western Australia, Parliamentary Debates, Legislative Council, 6 November 2002, 2642 (Kim Chance, Minister for
Agriculture and Food).
Western Australia, Parliamentary Debates, Legislative Council, 19 November 2009, 9407 (Donna Faragher,
Minister for Environment).
Ibid.
Ibid.
administrative procedures were amended to reduce the number of levels of assessment from five to
two; Public Environmental Review and Assessment on Proponent Information (no public review) 90.
Appeal rights on the EPA'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 assessments91. The appeal right on the EPA's decision on the scope and
content of an assessment of a scheme was also removed as the Government 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 appeal92.
2.4 Criticisms of the current appeals system:

One of the arguments against the appeals system is that there could be a breach of natural justice 93.
This is because according to some critics for the Convenor there is a lack of procedural guidance
and this fails to comply with natural justice 94. Critics have argued that the EP Act has been written
so that it provides little guidance to appellants 95. An appeals system that does not have many
procedural rules and is considered too flexible may allow for public officials to abuse the system 96.
Some critics of the current appeals system believe that this may create bias and a lack of
transparency which results in little to no natural justice 97. According to the critics a lack of natural
justice in the system cannot be viewed as a real merits based appeals system this causes the public
to lose confidence98.
Another criticism of the current appeals system is that it is essentially an appeal from Caesar to
90
91
92
93
94
95
96
97
98
18
Western Australia, Gazette: Special, No 223, 26 November 2010.

Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
G D. Mcycrs,'Meeting Public Expectations - Judicial Review of Environmental Impact Statements in the United
States: Lessons for Reform in Western Australia?' (1996) 3(2) Murdoch University Electronic Journal of Law
<http://www.murdoch.edu.au/elaw/issues/v3n2/meyers.txt>.
Ibid.
Caesar99. In the current system, critics argue that the Minister plays numerous roles and these roles
can contradict with each other 100. An example is when the Minister is in charge of approving the
process under Section 45 after determining the appeals directed at the proposal. When the Minister
makes a decision about an appeal, they may only take into consideration the environmental matters
that are relevant to the proposal101. However when they are determining a proposal under Section
45, it can be argued that they are undertaking a political process 102. This could open the Minister's
decisions of appeals to judicial review as considerations could have been taken into account that
were not environmental matters103. The Minister's contradicting roles opens the appeals system to
not be trusted by the public104.
Another criticism is the inability of any further merits appeal for appealing against the Minister's
decision105. Judicial review is available to appeal the Minister's decisions through the common law,
however because the EP Act does not clearly provide for judicial 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 matter106. Standing is very difficult to prove if the harm suffered by the
appellants (for example a conservation organisation) is no different than those in the general public.
If the merits review system is unfair and judicial review is not very accessible, this discourages the
public to get involved in environmental decision-making.
99
100
101
102
103
104
105
106
19
Industry Working Group, Review of Approval Processes in Western Australia (2009), Department of Mines and
Petroleum <http://www.dmp.wa.gov.au/documents/Review_of_Approval_Processes_070809_WEB.pdf>.
Ibid.
Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136.
Ibid.
Ibid.
Ibid, 122.
Australia Conservation Foundation v. Commonwealth (1980) 146 CLR 493.
Chapter 3. Methods:
Since 1986 there have been thousands of projects and thousands of appeals against those projects. It
is important to limit the number of appeals to be sampled as there are too many that can be
recorded. This is one of the reasons as to why the appeals were limited to 2006 and 2010. Another
reason was that appeals from before 2006 were not readily available on the internet but all appeals
from
2006
onwards
were
available
on
the
Convenor's
website
(http://portal.appealsconvenor.wa.gov.au/). Another reason why the research was limited to appeals

between 2006 and 2010 was because all appeals after 2010 were subject to the amendments in the
Approvals and Related Reforms (No. 1) (Environment) Act 2010 (WA) as mentioned above. The
appeals provisions would have been different from 2011 onwards so it was decided that the appeals
provisions needed to be consistent in the sampling strategy.
The types of appeals chosen were appeals for the environmental factors of Native Terrestrial
Vegetation and Waterways. I used the definitions of these types of appeal from the Environmental
Guidance for Planning and Development report, a report from the EPA that details the definitions
for those environmental factors. The definitions of these two environmental factors can be found in
the appendix. These two types were chosen for the high frequency of appeals of these
environmental factors from 2006 to 2010.
Once the type of appeals to be evaluated between 2006 and 2010 had been selected, document
analysis was undertaken. The study looked at all Native Terrestrial Vegetation and Waterways
appeals between 2006 and 2010 starting with the EPA report and recommendations from projects.
The study also analysed the Convenor's report in regards to the appeals and the Minister's
determination relevant to the appeals, and any subsequent Ministerial Statements and whether there
were any changes from the recommendations in the EPA Report. The EPA reports and
20
recommendations, Minister's reports and Ministerial Statements are available on the EPA website
(http://epa.wa.gov.au/). The Convenor's reports are available from the Convenor's website. Two
Excel databases was created, one for Waterways appeals and one for Native Terrestrial Vegetation
appeals.
The following information from the document analysis was recorded:
The proponent;
The EPA report recommendations;
The appellants;
The location;
The project type;
The grounds of appeal raised;
The Convenors recommendation;
The Minister's decision;
Whether the conditions were strengthened, weakened or there was no change at all; and
Any changes in the ministerial statement from the recommendations in the EPA report.
For the excel databases, a database glossary was created and specific letter codes and categories
were used to classify the decision of the appeal and whether the project complied with and
subsequently whether their compliance enhanced or diminished against the Section 4A principles.
Location, type of project and the different classes of appellants were also coded for. The appendix
contains the database glossary. The appendix also contains example tables which shows how the
data was added in the Excel databases.
The study compared the appeals against the projects before and after they left the appeals system
21
with the Section 4A principles. These principles were used as criteria to determine whether the
appeals system adds value to the projects. Section 4A of the EP Act states the object and principles
of the EP Act. The principles will be used as criteria to determine whether the appeals system is
adding value to development projects. By determining whether from the assessment of projects
complied with Section 4A before entering the appeals system and whether the projects enhanced or
diminished in compliance with Section 4A after leaving the appeals system, we can determine
whether the appeals system is adding value to the projects.
Section 4A states that the object of this Act is to protect the State, having regard to the following
principles...107. The principles of Section 4A are all principles of ESD and are commonly found in
Australian legislation and policy108. The report Our Common Future by the World Commission on
Environment and Development is usually credited with introducing the idea of ESD 109 into broad
political and policy debates110. ESD involves the simultaneous satisfaction of economic,
environmental and social factors111. The principles in Section 4A 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.
The Precautionary Principle:

The precautionary principle states where there are threats of serious or irreversible damage, lack of
107
108
109
110
111
22
Environmental Protection Act 1986 (WA), above n 1, s4A.

R Harding, 'Ecologically sustainable development: origins, implementation and challenges' (2006) 187 Desalination
229, 235.
World Commission of Environment and Development, 'Our Common Future' (1987) <http://www.undocuments.net/wced-ocf.htm>.
R Harding, above 108, 231.
Ibid, 233.
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
(a) careful evaluation to avoid, where practicable, serious or irreversible damage to the
environment; and
(b) an assessment of the risk-weighted consequences of various options.112
The precautionary principle can be defined as a principle that encourages decisions that protect
human health and the environment in the face of uncertain risks113. The principle has been enshrined
in numerous Australian legislation and policies 114. The principle has gained importance over time
because there is a perception in society that the pace of environmental degradation continues to
grow more quickly than society's ability to identify and correct the environmental degradation 115.
The principle requires decision-makers to make decisions with the goal to reduce and prevent
negative environmental impacts even if the potential and/or irreversible threat of harm are not
certain116. The Minister when determining environmental appeals with their decision should avoid,
where practicable, serious or irreversible damage to the environment.117
The EP Act's precautionary principle is quite weak. Often weak versions of the principle contain
some form of the phrase lack of scientific certainty should not be used as a reason for postponing
action.118 For the EP Act, it states that where 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
113
114
115
116
117
118
23
Environmental Protection Act 1986 (WA), above n 1, s 4A.

David Kriebel et al, 'The Precautionary Principle in Environmental Science' (2001) 109(9) Environmental Health
Perspectives 871, 871.
Deborah C. Peterson, 'Precaution: principles and practice in Australian environmental and natural resource
management' (2006) 50 The Australian Journal of Agricultural and Resource Economics 469, 478.
David Kriebel et al, above n 113, 871.
Deborah C. Peterson, above n 114, 469.
environmental degradation119. Weak formulations of the precautionary principle act as a rebuttal

to the mistaken claim that uncertainty warrants inaction 120. However this form does not require
action to prevent environmental damage, even if the threshold of threat has been satisfied121.
The EP Act does not define what evidence of harm and risk will satisfy the threshold test of serious
or irreversible damage to the environment. However it has been argued that there is a trend for
Australian tribunals to accept less-objective evidence of threat as sufficient to satisfy the threshold
test for cases which have a lot of complex issues, large information gaps, high levels of scientific
uncertainty and the potential for serious and permanent damage to the environment 122. Examples of
these types of cases can include natural resources management decisions and fisheries management
decisions123. In cases where the issues and uncertainties are fairly straightforward, tribunals have
required more rigorous evidence124. Examples of these types of cases can include small-scale
planning decisions125.
Intergenerational Equity Principle:

For the intergenerational equity principle the EP Act states that the present generation should
ensure that the health, diversity and productivity of the environment is maintained or enhanced for
the benefit of future generations126. It can be defined as the current generation's obligation to future
generations to ensure that the environment is healthy and productive 127. The principle could be
considered a fiduciary relationship between us and future generations as this relationship imposes
on trustees (the current generation) a duty to act for the benefit of future generations128.
119
120
121
122
123
124
125
126
127
128
24

Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Edith Brown Weiss, 'Planetary Trust: Conservation and Intergenerational Equity' (1984) 11(4) Ecology Law
Quarterly 495, 499.
Ibid.
The principle of conservation of biological diversity and ecological integrity:

The principle of conservation of biological diversity and ecological integrity states that
conservation of biological diversity and ecological integrity should be a fundamental
consideration129. It is particularly important that decision-makers take this fundamental
consideration into regard in Australia due to its poor biodiversity conservation record and its unique
biodiversity130. This principle is important, however it is only one of a number of principles the
implementation of which 'can' achieve ESD131. Although this principle is of fundamental
consideration, decision-makers within their legal boundaries can make decisions that impact
significantly and negatively on the environment132.
The principle relating to improved valuation, pricing and incentive mechanisms:

The principle relating to improved valuation, pricing and incentive mechanisms states:
Environmental factors should be included in the valuation of assets and services.
The polluter pays principle those who generate pollution and waste should bear the cost
of containment, avoidance or abatement.
The 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.
Environmental 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 maximise benefits and/or minimise costs to develop their own solutions and
responses to environmental problems133.
129
130
131
132
133
25

R. Harding, above n 108, 236
Gerry Bates, Environmental Law in Australia (LexisNexis Butterworths, 6th ed, 2006) 138.
Ibid.
The principle means that environmental factors should be included in the valuation of assets and
services134. The 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 wasted135. Examples of less damaging resource alternatives include renewable
energy and recycled water that would become more competitive in the marketplace if this principle
is applied136.
The Principle of Waste Minimisation:

The principle of waste minimisation states all reasonable and practicable measures should be taken
to minimise the generation of waste and its discharge into the environment 137. In Australia the
National Waste Minimisation and Recycling Strategy aimed to encourage the ecologically
sustainable non-wasteful use of resources, reduce potential hazards to human health and the
environment posed by pollution and wastes, and maintain or improve environmental quality. 138 At
the Organisation for Economic Co-operation and Development's (OECD) Berlin workshop in 1996
the current definition of waste minimisation was established 139. According to the OECD waste
minimisation covers prevention, reduction at source and re-use of products 140. Waste
minimisation, however, also includes the waste management measures quality improvements
(such as reducing the hazard) and recycling' 141. Appeals decisions that reflect this ESD principle
will include measures that prevent waste, reduce waste or encourage recycling.
The Section 4A criteria allow the study to determine an absolute test of compliance of the projects
134
135
136
137
138
139
140
141
26
Ibid, 139.
Ibid.
R Harding, above n 112, 236.
Caroline Williams, 'Combating marine pollution from land-based activities: Australian initiatives' (1996) 33(1-3)
Ocean and Coastal Management 87, 107.
Henrik Jacobsen and Merete Kristoffersen, 'Case Studies of Waste Minimisation Practices in Europe' (2002)
European Environment Agency 4, 5.
Ibid.
Ibid.
before entering the appeals system and a relative test of compliance after leaving the appeals
system. The criteria allows us to see how the projects were before they entered the appeals system
and then allows us to see whether these projects 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 projects both
before and after leaving the appeals system so that we are as consistent and as objective as possible.
The criteria will allow us to determine whether the projects were enhanced, diminished or not
changed in compliance after leaving the appeals system.
27
Chapter 4. Results and Discussion

4.1 Projects containing Waterways appeals between 2006 and 2010:
Number of Waterways appeals from projects:
Table 1 displays the number of appeals from projects between 2006 and 2010. In total there were
126 Waterways appeals against projects between those years. Table 2 shows the number of appeals
against projects that complied with Section 4A before entering the appeals system. Table 3 shows
the number of appeals against projects that did not comply with Section 4A before entering the
appeals system. Tables 2 and 3 also show whether the projects were enhanced or diminished in
compliance with Section 4A after leaving the appeals system.
In Table 2, most of the appeals did not lead to an enhancement of the projects compliance. In 33%
of the appeals against projects, the projects remained at the same level of compliance, in 24% of
appeals against projects, compliance diminished for projects. In 20% of appeals against projects, the
projects' enhanced in compliance. In the balance of cases appeals were remitted back to the EPA. In
Table 3, most of the appeals also did not enhance the projects compliance. In 64% of the appeals
from these projects they remained at the same level of compliance, and 32% diminished. The
remaining 4% were enhanced in compliance.
For both tables most of the projects that remained at the same level of compliance were because the
appeals were dismissed by the Minister. From the appeals that were remitted to the EPA for further
consideration they were all from the Yannarie Solar Salt Project, a Solar Salt Field from the
Gascoyne.
28
Table 1: Number of appeals in each year between 2006 and 2010.

Year
Number of appeals
2006
12
2007
23
2008
48
2009
16
2010
27
Table 2: Number of appeals from projects that complied before and whether they enhanced/did not
enhance in compliance with Section 4A after leaving the appeals system.
Appeals that
Appeals
Appeals that
Appeals that
complied
enhanced
diminished
didn't change
98
20
24
32
Appeals remitted
22
Table 3: Number of appeals from projects that did not comply before and whether they
enhanced/did not enhance in compliance with Section 4A after leaving the appeals system.
Appeals that
Appeals
Appeals that
Appeals that
didn't complied
enhanced
diminished
didn't change
28
29
18
Appeals remitted
Comparison of Waterways appeals from projects with their location and Section 4A:
Table 4 shows the number of appeals against projects with the project locations that complied with
Section 4A before entering the appeals system and how many of those appeals enhanced or
diminished the projects in compliance after leaving the appeals system. Most of the appeals against
the projects from all locations did comply originally but most of them did not change the projects
and they remained at the same level of compliance. There are however some exceptions in
particular appeals against projects from the Pilbara. Most of the appeals against the projects came
from the Pilbara region. 59% of those appeals diminished the projects in compliance. 31% of the
appeals did not change the projects in compliance and 10% of the appeals did enhance the projects
in compliance. In the South West, 52% of appeals against projects did not change the projects in
compliance. 14% of appeals against projects diminished the projects in compliance and 33% of
appeals against projects enhanced the projects in compliance. All these appeals came from the
Southern Seawater Desalination Plant Project. In the Kimberley 30% of appeals against projects did
not change the projects in compliance. 20% of appeals against projects diminished the projects in
compliance and 50% of appeals against projects enhanced the projects in compliance. In the Great
Southern all the appeals were for the Albany Port Expansion Project. 67% of the appeals against the
project did not change the project. 17% of appeals against the project did enhance the project in
compliance and 17% of appeals against the project did diminish the project in compliance. 100% of
the appeals from the Gascoyne were remitted back into the EPA.
Table 5 shows the number of appeals against projects with the project locations that did not comply
with Section 4A before entering the appeals system and how those projects were enhanced or
diminished in compliance with Section 4A after leaving the appeals system. Most of the appeals
against projects did not change the projects and they remained at the same level of compliance.
Most of the appeals came from the Pilbara. From the Pilbara 52% of these appeals against appeals
30
did not change the projects and they remained at the same level of compliance and 43% of appeals
against projects diminished the projects in compliance. The 5% of appeals from the Pilbara that
enhanced the project came from the Macedon Project.
Table 4: Number of appeals from projects and their project location that complied before entering
the appeals system and whether they enhanced/did not enhance in compliance with Section 4A after
leaving the appeals system.
Location
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
complied
enhanced
diminished
didn't change
remitted
Gascoyne
22
22
Goldfields
Great Southern
Kimberley
10
Mid West
Peel
Pilbara
29
17
South West
21
11
Wheatbelt
Perth
Total
98
20
24
32
22
31
Table 5: Number of appeals from projects and their project location that did not comply before
entering the appeals system and whether they enhanced/did not enhance in compliance with Section
4A after leaving the appeals system.
Location
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
didn't comply
enhanced
diminished
didn't change
remitted
Gascoyne
Goldfields
Great Southern
Kimberley
Mid West
Peel
Pilbara
21
11
South West
Wheatbelt
Perth
Total
28
18
32
Graph 1 is a stacked bar graph which compares the percentage of appeals against projects and their
locations with compliance with Section 4A before entering the appeals system. Graph 2 is a stacked
bar graph which compares the percentage of appeals against projects and their locations with
compliance with Section 4A after leaving the appeals system. These graphs reflect the results from
Tables 4 and 5.
33
Comparison percentage of project locations with Section 4A before entering the appeals system
Total
Perth
Wheatbelt
Project location
South West
Pilbara
Peel
Mid West
Kimberley
Great Southern
Goldfields
Gascoyne
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Percentage
Percentage of appeals that complied before entering the appeals system
Percentage of appeals that did not comply with before entering appeals system
Graph 1: Stacked bar graph displaying the percentage of appeals from projects with their
locations and their compliance with Section 4A before entering the appeals system.
34
Project locations
Comparison of Project appeals from locations after leaving the appeals system
Total
Perth
Wheatbelt
South West
Pilbara
Peel
Mid West
Kimberley
Great Southern
Goldfields
Gascoyne
0%
10%
20%
30%
40%
50%
60%
70%
80%
90% 100%
Percentage
Percentage of appeals that complied and enhanced in compliance

Percentage of appeals that did comply and diminished in compliance
Percentage of appeals that did comply and remained the same in compliance
Percentage of appeals from projects w ere w ithdraw n or remitted that did not comply before
Percentage of appeals from projects that did not comply and enhanced in compliance
Percentage of appeals that did not comply and diminished in compliance
Percentage of appeals that did not comply remained the same in compliance
Percentage of appeals from projects w ere w ithdraw n or remitted that did comply before
locations and their compliance with Section 4A after leaving the appeals system.
35
Comparison of projects with appeals with project type and Section 4A:
Table 6 shows the number of appeals against projects with the different project types that complied
with Section 4A before entering the appeals system. The table demonstrates how many of those
appeals against projects enhanced or diminished the projects in compliance with Section 4A after
leaving the appeals system. Most of projects were of Iron Ore, Gas, Water Supply and Solar Salt
Field type. For Iron Ore projects, 70% of appeals against appeals diminished the projects in
compliance. For Gas projects, most of the appeals against project diminished the projects in
compliance with 41% of appeals. The 10% of appeals that enhanced in compliance all came from
the Scott Reef Maxima project. For Water Supply type, all of those appeals came from the Southern
Seawater Desalination Plant Project. Most of those appeals did not change the project and it
remained mostly at the same level of compliance. 14% of appeals from the Southern Seawater
Desalination Plant Project did diminish the project in compliance. 32% of appeals did enhance the
project in compliance.
Table 7 shows the number of appeals against projects with the different project types that did not
comply with Section 4A before entering the appeals system. The table demonstrates how many of
the appeals against projects enhanced or diminished the projects in compliance with Section 4A
after leaving the appeals system. Most of the appeals came from Iron Ore, Gas and Water Supply
projects. For Iron Ore types, all the appeals were for the Cape Lambert Project. 100% of the appeals
diminished the project. For the Gas projects, 86% of appeals did not change the projects' level of
compliance and they remained at the same level of compliance. The 7% of appeals that enhanced
the project and they were all for the Macedon Project. The other 7% of appeals that diminished the
project in compliance came from the Gorgon Gas Expanded Project. For appeals of the Water
Supply type they all came from the Southern Seawater Desalination Plant project. 100% of the
appeals did not change their project and it remained at the same level of compliance.
36
Table 6: Number of appeals against projects with the project type that complied before and whether
they enhance/did not enhance in compliance with Section 4A after leaving the appeals system.
Project type
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
complied
enhanced
diminished
didn't change
remitted
Chemical
Iron Ore
10
Port
Mineral Sands
Silicon
Gas
29
12
10
Town Planning
Power Station
Molybdenum
Wastewater
Alumina
Infrastructure
Water Supply
22
12
Seismic
Landfill
Solar Salt Field
22
22
Fishing
Residential
Agriculture
Gypsum
Tourism
Total
98
20
24
32
22
Refinery
Survey
37
Table 7: Number of appeals against projects with the project type that complied before and whether
they enhanced/did not enhance in compliance with Section 4A after leaving the appeals system.
Project type
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
didn't comply
enhanced
diminished
didn't change
remitted
Chemical
Iron Ore
Port
Mineral Sands
Silicon
Gas
14
12
Town Planning
Power Station
Molybdenum
Wastewater
Alumina
Infrastructure
Water Supply
Seismic
Landfill
Solar Salt Field
Fishing
Residential
Agriculture
Gypsum
Tourism
Total
28
18
Refinery
Survey
38
Graph 3 is a stacked bar graph which compares the percentage of appeals against projects with the
project type and compliance with Section 4A before entering the appeals system. Graph 4 is a
stacked bar graph which compares the percentage of appeals against projects and the project type
with compliance with Section 4A after leaving the appeals system. Graphs 3 and 4 demonstrate the
results of Tables 6 and 7.
39
Comparison percentage of project types with Section 4A before entering the appeals system
Total
Tourism
Gypsum
Agriculture
Residential
Fishing
Solar Salt Field
Landfill
Project type
Seismic Survey
Water Supply
Infrastructure
Alumina Refinery
Wastew ater
Molybdenum
Pow er Station
Tow n Planning
Gas
Silicon
Mineral sands
Port
Iron Ore
Chemical
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Percentage
Graph 3: Stacked bar graph displaying the percentage of appeals from projects with their project
types and their compliance with Section 4A before entering the appeals system.
40
Comparison percentage of project types with Section 4A after leaving the appeals system
Total
Tourism
Gypsum
Agriculture
Residential
Fishing
Solar Salt Field
Landfill
Project type
Seismic Survey
Water Supply
Infrastructure
Alumina Refinery
Wastew ater
Molybdenum
Pow er Station
Tow n Planning
Gas
Silicon
Mineral sands
Port
Iron Ore
Chemical
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Percentage
Percentage of appeals from projects were withdrawn or remitted that did comply before
Percentage of appeals that did not comply and enhanced in compliance
Percentage of appeals from projects were withdrawn or remitted that did not comply before
Graph 4: Stacked bar graph displaying the percentage of appeals from projects with their project
types and their compliance with Section 4A after leaving the appeals system.
41
Comparison of appeals against projects with appellant type:

Table 8 shows the total of appeals against projects with the different appellant types that complied
with Section 4A before entering the appeals system and how many of those appeals enhanced or
diminished the projects in compliance after leaving the appeals system. Table 9 shows the total of
appeals against projects with the different appellant types that did not comply with Section 4A
before entering the appeals system and how many of those appeals enhanced or diminished the
projects in compliance after leaving the appeals system. Private Proponents were from large
companies such as Chevron and Woodside. The Government Proponents were the City of
Rockingham and the Water Corporation. Third Party appellants were mostly from conservation
groups such as the Conservation Council.
Table 8 shows that most of the appeals against projects are by Private Proponents. For Private
Proponents, 40% of the appeals against the projects were remitted back into the EPA and 38% of
appeals diminished the projects in compliance. For Government Proponents, 43% of the appeals for
projects did not change the projects and they remained at the same level of compliance. 30% of
appeals enhanced the projects in compliance. These appeals came from the Port Rockingham
Marina Project. 26% of appeals diminished the projects. For appeals from projects by Third Party
appellants, 50% of the appeals did not change the projects and they remained the same level of
compliance. 33% of appeals did enhance the compliance of the projects. 13% of appeals remitted a
project back into the EPA.
Table 9 shows that most of the appeals from projects are by Private Proponents. For appeals for
projects by Private Proponents, 64% diminished the projects in compliance. For Government
Proponents 100% of appeals did not change the project and it remained at the same level of
compliance. This appeal came from the Southern Seawater Desalination Plant Project. For Third
42
Party appellants, 92% of the appeals for projects did not change the projects and they remained at
the same level of compliance. 8% of appeals did enhance the project in compliance and they came
from the Macedon Project.
43
Table 8: Number of appeals against projects and the appellant type that complied before and
whether they enhanced/did not enhance in compliance with Section 4A after leaving the appeals
system.
Appellant
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
Type
complied
enhanced
diminished
didn't change
remitted
Private
45
17
18
23
10
30
10
15
98
20
24
32
22
Proponents
Government
Proponents
Third Party
Appellants
Total
Table 9: Number of appeals against projects and the appellant type that did not comply before and
system.
Appellant
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
Type
didn't comply
enhanced
diminished
didn't change
remitted
Private
14
13
13
28
18
Proponents
Government
Proponents
Third Party
Appellants
Total
44
Graph 5 is a stacked bar graph which compares the percentage of appeals against projects with the
appellant type with Section 4A before entering the appeals system. Graph 6 is a stacked bar graph
which compares the percentage of appeals against projects with the appellant type with Section 4A
after leaving the appeals system. These graphs reflect the results from Tables 8 and 9.
45
Comparison percentage of appellant types with Section 4A before entering the appeals system
Appellant type
Total
Appellant Third Party
Proponent (Government)
Proponent (Private)
0%
10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Percentage

appellant types and their compliance with Section 4A before entering the appeals system.
46
Comparison percentage of appellant types with Section 4A after leaving the appeals system
Total
Appellant type
Proponent (Private)
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Percentage
appellant types and their compliance with Section 4A after leaving the appeals system.
47
How the appeals enhance, diminish or not change the projects in compliance with Section 4A:
Most of the appeals against projects did not change the projects in compliance and they remained at
the same level of compliance. However for projects from the Pilbara region, most of the appeals did
diminish the projects. Most of the projects from the Pilbara region were of Gas and Iron Ore type
and most of them diminished in compliance from the appeals. For both Iron Ore and Gas projects in
which compliance was diminished, they diminished through the weakening of conditions in regards
monitoring requirements and the protection of flora and fauna. Some of the Gas and Iron Ore
projects diminished in compliance through the reversing of decisions by the EPA that originally
found a part of the project environmentally unacceptable. For many of the Gas projects that
diminished, the appeals diminished the conditions for the protection of turtles and their coral
habitat. For both Iron Ore and Gas projects, many of the projects were enhanced through the
strengthening of monitoring conditions and management plans. Gas projects for one project in
particular were enhanced by clarifying the coordinates of the project to prevent environmentally
significant areas from being damaged. Most of the projects from Gas and Iron Ore projects in the
Pilbara were also from Private Proponents. There were lots of appeals by Third Party appellants for
these projects as well.
There were many appeals that came from the South West. All these appeals were of the Water
Supply type of project. All the appeals came from the Southern Seawater Desalination Plant Project.
Most of the of appeals did not change the project in compliance. The project diminished in
compliance through the decreasing the of monitoring requirements for water health. This project
was enhanced in compliance by some of the appeals through strengthening of conditions in regards
to protection of marine fauna.
In the Kimberley most of the appeals against projects enhanced the projects in compliance. The
48
appeals that enhanced the projects in compliance were through the strengthening of monitoring
conditions for fauna. The appeals from the Kimberley that diminished the projects in compliance
were through the reversing of EPA decisions in which the EPA originally decided that seismic
surveying between the months of October and April was not environmentally acceptable. All the
appeals from the Gascoyne were of the Solar Salt Field type of project and they were all remitted
back into the EPA. These appeals were remitted back to the EPA so they could be looked at again
afresh. All these appeals came from the Yannarie Solar Salt Project. There were Third Party and
Private Proponent appellants who had appeals against the Yannarie Solar Salt Project.
For Government Proponents, most of the appeals against projects did not change the projects and
they remained at the same level of compliance. The appeals from Government Proponents came
from the Port Rockingham Marina Project and the Albany Port Expansion Project. The Port
Rockingham Marina Project was located in Perth and the Albany Port Expansion Project was
located in the Great Southern. The appeals from the Port Rockingham Marina Project that did
enhance the project in compliance was through the introduction of a management plan. The Port
Rockingham Marina Project diminished in compliance were through the weakening of water quality
and macro-algae monitoring requirements.
4.2 Projects containing Native Terrestrial Vegetation appeals between 2006 and 2010:
49
Number of Native Terrestrial Vegetation appeals against projects:

Table 10 displays the number of appeals against projects between 2006 and 2010. Between those
years there was 90 appeals. Table 11 shows the total of appeals against projects that complied with
Section 4A before entering the appeals system. The table demonstrates how many those appeals
enhanced or diminished the projects in compliance with Section 4A after leaving the appeals
system. Table 12 shows the total of appeals against projects that did not comply with Section 4A
before entering the appeals system. The table demonstrates how many of those appeals that
enhanced or diminished the projects in compliance with Section 4A after leaving the appeals
system.
Comparing Table 11 and 12, they show that for most of the appeals against projects did comply
before entering the appeals system. In Table 11 most of the appeals did not enhance the projects in
compliance with 38% of appeals that did not change the projects and 12% of appeals that
diminished the projects in compliance. 48% of appeals did enhance the projects in compliance.
Table 12 shows that 67% of appeals did not change their projects and they remained at the same
level of compliance. 33% of appeals did enhance the projects in compliance. It must be mentioned
that most of the projects that remained at the same level in compliance were because their appeals
were dismissed.
50
Table 10: Number of appeals in each year between 2006 and 2010.
Year
Number of appeals
2006
14
2007
2008
17
2009
23
2010
28
Table 11: Number of appeals against projects that complied before and whether they enhanced/did
not enhance in compliance with Section 4A after leaving the appeals system.
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
complied
enhanced
diminished
didn't change
withdrawn
81
39
10
31
Table 12: Number of appeals against projects that did not comply before and whether they
enhanced/did not enhance in compliance with Section 4A after leaving the appeals system.
51
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
didn't comply
enhanced
diminished
didn't change
withdrawn
Comparison of appeals from projects with their location:

Table 13 shows the total of appeals against projects from the different locations that complied with
Section 4A before entering the appeals system. Table 14 shows the total of appeals against projects
from the different locations that did not comply with Section 4A before entering the appeals system.
Tables 13 and 14 demonstrate how many of those appeals enhanced or diminished their projects in
compliance with Section 4A after leaving the appeals system.
In Table 13, most of the appeals from projects came from the Mid West, Pilbara and the Wheatbelt.
For appeals located at the Mid West, 50% of appeals enhanced the projects and 29% of appeals
diminishing their projects in compliance and 21% of appeals that did not change their projects. All
the appeals that diminished the project in compliance came from the Mount Gibson Iron Ore Mine
Project. From the Pilbara, 57% of appeals enhanced the projects in compliance. 14% of appeals did
diminish the projects in compliance. 29% of appeals did not change their projects and they
remained at the same level of compliance. From the Wheatbelt, 57% of the appeals enhanced the
projects in compliance. 36% of appeals did not change the projects and they remained at the same
level of compliance. 4% of appeals diminished the project in compliance and 4% of appeals from a
project was withdrawn. The appeals that diminished the project in compliance came from the
Koolyanobbing Iron Ore Project. The project that contained the appeal that was withdrawn was the
Koolyanobbing Iron Ore - W2 Pit Project. From the Goldfields, 50% of appeals against projects
enhanced the projects in compliance and 50% of appeals against projects did not change the
projects in compliance. The project that was enhanced in compliance was the Carina Iron Ore
Project.
In Table 14, most of the appeals came from the Mid West, Pilbara, Peel and the Wheatbelt. From the
Mid West 100% of appeals did not change the Karara Iron Ore project and it remained the same
52
level of compliance. From the Peel 100% of appeals enhanced the Shire of Waroona Town Planning
Project in compliance. From the Pilbara 100% of appeals did not change their projects and they
remained at the same level of compliance. From the Wheatbelt, 100% of appeals enhanced their
project in compliance. The appeals came from the Koolyanobbing Iron Ore Project.
53
Table 13: Number of appeals against projects with the project location that complied and whether
Location
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
complied
enhanced
diminished
didn't change
withdrawn
Gascoyne
Goldfields
Great Southern
Kimberley
Mid West
14
Peel
Pilbara
14
South West
Wheatbelt
28
16
10
Perth
Total
81
39
10
31
Table 14: Number of appeals against projects with the project location that did not comply and
system.
Location
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
didn't comply
enhanced
diminished
didn't change
remitted
Gascoyne
Goldfields
Great Southern
Kimberley
Mid West
Peel
Pilbara
South West
Wheatbelt
Perth
Total
54
Graph 7 is a stacked bar graph which compares the percentage of appeals against projects and the
location with Section 4A before entering the appeals system. Graph 8 is a stacked bar graph which
compares the percentage of appeals against projects and the location with Section 4A after leaving
the appeals system. Graphs 7 and 8 demonstrate the results from Tables 13 and 14.
55
Comparison percentage of project locations with Section 4A before entering the appeals system
Total
Perth
Wheatbelt
South West
Location
Pilbara
Peel
Mid West
Kimberley
Great Southern
Goldfields
Gascoyne
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Percentage

Graph 7: Stacked bar graph displaying the percentage of appeals from projects with project
locations and their compliance with Section 4A before entering the appeals system.
56
Comparison of Project appeals from locations after leaving the appeals system
Total
Perth
Wheatbelt
South West
Location
Pilbara
Peel
Mid West
Kimberley
Great Southern
Goldfields
Gascoyne
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Percentage
Graph 8: Stacked bar graph displaying the percentage of appeals from projects with project
locations and their compliance with Section 4A after leaving the appeals system.
57
Comparison of appeals from projects with project type and Section 4A:
Table 15 shows the total of appeals against projects with the different project types that complied
with Section 4A before entering the appeals system. Table 15 demonstrates how many of those
appeals enhanced or diminished the projects in compliance with Section 4A after leaving the
appeals system. Table 16 shows the total of appeals against projects with the different project types
that did not comply with Section 4A before entering the appeals system. Table 16 also demonstrates
how many of those appeals enhanced or did not enhance the projects in compliance with Section 4A
after leaving the appeals system.
In Table 15 most of the appeals came from Iron Ore, Mineral Sands, Gas and Water Supply projects.
For Iron Ore projects, 59% of appeals enhanced the projects in compliance. 12% of appeals
diminished the projects in compliance. 27% of appeals did not change the projects so that they
remained at the same level of compliance. For Mineral Sands projects, 63% of appeals did not
change the projects and they remained at the same level of compliance. 38% of appeals enhanced
the projects in compliance. For Gas projects, 50% of the appeals did not change the projects and
they remained at the same level of compliance and 50% of appeals did diminish the project in
compliance. The project that diminished in compliance was the Devils Creek Development Project.
For Water Supply type projects, all of the appeals came from the Southern Seawater Desalination
Project. 75% of the appeals did not change the project in compliance and 25% of the appeals did
enhance the project in compliance.
In Table 16 the most of the appeals came from Iron Ore and Gas projects. For Iron Ore projects,
80% of appeals did not change the projects and they remained at the same level of compliance.
There were 20% of appeals that enhanced the project in compliance. The project that was enhanced
in compliance was the Koolyanobbing Iron Ore Project. For Gas projects, 100% of appeals did not
58
change their projects and they remained at the same level of compliance.
Table 15: Number of appeals against projects with the project type that complied before entering
the appeals system and the number that enhanced/did not enhance in compliance with Section 4A
after leaving the appeals system.
Project type
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
complied
enhanced
diminished
didn't change
withdrawn
Chemical
Iron Ore
51
30
14
Port
Mineral Sands
Silicon
Gas
Town Planning
Power Station
Molybdenum
Wastewater
Alumina
Infrastructure
Water Supply
Seismic
Landfill
Solar Salt Field
Fishing
Residential
Agriculture
Gypsum
Tourism
Total
81
39
10
31
Refinery
Survey
59
Table 16: Number of appeals against projects and the project type that did not comply before
entering the appeals system and the number that enhanced/did not enhance in compliance with
Section 4A after leaving the appeals system.
Project type
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
didn't comply
enhanced
diminished
didn't change
withdrawn
Chemical
Iron Ore
Port
Mineral Sands
Silicon
Gas
Town Planning
Power Station
Molybdenum
Wastewater
Alumina
Infrastructure
Water Supply
Seismic
Landfill
Solar Salt Field
Fishing
Residential
Agriculture
Gypsum
Tourism
Total
Refinery
Survey
60
Graph 9 is a stacked bar graph which compares the percentage of appeals against projects and the
project types with Section 4A before entering the appeals system. Graph 10 is a stacked bar graph
which compares the percentage of appeals against projects and the project types with Section 4A
after leaving the appeals system. Graphs 9 and 10 demonstrate the results from Tables 15 and 16.
61
Project type
Comparison of Project appeals and their project types before entering the appeals system
Total
Tourism
Gypsum
Agriculture
Residential
Fishing
Solar Salt Field
Landfill
Seismic Survey
Water Supply
Infrastructure
Alumina Refinery
Wastewater
Molybdenum
Power Station
Town Planning
Gas
Silicon
Mineral sands
Port
Iron Ore
Chemical
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Percentage
Graph 9: Stacked bar graph displaying the percentage of appeals from projects of project types
and their compliance with Section 4A before entering the appeals system.
62
Project type
Comparison of Project appeals and their project types after leaving the appeals system
Total
Tourism
Gypsum
Agriculture
Residential
Fishing
Solar Salt Field
Landfill
Seismic Survey
Water Supply
Infrastructure
Alumina Refinery
Wastew ater
Molybdenum
Pow er Station
Tow n Planning
Gas
Silicon
Mineral sands
Port
Iron Ore
Chemical
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Percentage
Percentage of appeals from projects w ere w ithdraw n or remitted that did comply before
Percentage of appeals from projects w ere w ithdraw n or remitted that did not comply before
Graph 10: Stacked bar graph displaying the percentage of appeals from projects of project
types and their compliance with Section 4A after leaving the appeals system.
63
The number of appeals for each appellant type compared with Section 4A:
Table 17 shows the total of appeals against projects with the appellant types that complied with
Section 4A before entering the appeals system. Table 18 shows the total of appeals against projects
with the appellant types that did not comply with Section 4A before entering the appeals system.
The tables demonstrates how many of those appeals enhanced or diminished the projects in
compliance with Section 4A after leaving the appeals system. Third Party appellants came mostly
from conservation groups such as the Conservation Council. Private Proponents came from mostly
large companies such as Chevron and Woodside. There were no Government Proponents.
In Table 17 for Third Party appellants, 48% of appeals did enhance the projects in compliance. 9%
of appeals diminished the projects in compliance. 41% of appeals did not change the projects and
they remained at the same level of compliance. For Private Proponents, 17% of appeals diminished
the projects in compliance. 34% of appeals did not change the projects and they remained at the
same level of compliance. 49% of appeals from projects did enhance the projects in compliance.
The project that contained the appeal that was withdrawn was the Koolyanobbing Iron Ore - W2 Pit
Project.
In Table 18 for Third Party appellants, 50% of appeals enhanced the projects in compliance. 50% of
appeals did not change their projects and they remained at the same level of compliance. For Private
Proponents, 100% of appeals did not change the projects and they remained at the same level of
compliance.
64
Table 17: Number of appeals against projects and the appellant type that complied and whether
Appellant
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
Type
complied
enhanced
diminished
didn't change
remitted
Private
35
17
12
46
22
19
81
39
10
31
Proponents
Government
Proponents
Third Party
Appellants
Total
Table 18: Number of appeals against projects and the appellant type that did not comply and
whether they enhanced/did not enhance in compliance with Section 4A principles after leaving the
appeals system.
Appellant
Appeals that
Appeals that
Appeals that
Appeals that
Appeals
Type
didn't comply
enhanced
diminished
didn't change
remitted
Private
Proponents
Government
Proponents
Third Party
Appellants
Total
65
Graph 11 is a stacked bar graph which compares the percentage of appeals and the appellant types
with Section 4A before entering the appeals system. Graph 12 is a stacked bar graph which
compares the percentage of appeals and the appellant types with Section 4A after leaving the
appeals system. Graphs 11 and 12 demonstrate the results from Tables 17 and 18.
66
Comparison percentage of appellant types with Section 4A before entering the appeals system
Total
Appellant type
Proponent (Private)
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
Percentage

appellant types and their compliance with Section 4A before entering the appeals system.
67
100%
Comparison percentage of appellant types with Section 4A after leaving the appeals system
Appellant type
Total
Proponent (Private)
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
Percentage
Percentage of appeals
that complied and enhanced in compliance

that did comply and diminished in compliance
that did comply and remained the same in compliance
from projects were withdrawn or remitted that did comply before
that did not comply and enhanced in compliance
that did not comply and diminished in compliance
that did not comply remained the same in compliance
from projects were withdrawn or remitted that did not comply before
appellant types and their compliance with Section 4A after leaving the appeals system.
68
100%
How did the appeals enhance, diminish or not change the projects in compliance with Section 4A:
Most appeals from Third Party appellants did enhance the projects in compliance. For Private
Proponents, most of their appeals did not enhance the projects in compliance and either did not
change the projects in compliance or they were diminished in compliance. Most of the Native
Terrestrial Vegetation appeals against projects came from the Mid West, Pilbara, Wheatbelt, Peel,
the South West and the Goldfields.
The Mid West, Pilbara and the Wheatbelt regions contained most of the Iron Ore and Gas projects.
The Wheatbelt and the Peel contained the Mineral Sands projects. The South West region contained
the Water Supply projects. Most Iron Ore projects were enhanced in compliance by the appeals. All
of the Gas projects did not enhance in compliance and either did not change in compliance or
diminished in compliance.
For the Mid West, the projects that were enhanced in compliance from the appeals were through the
strengthening of rehabilitation requirements of the environment and the strengthening of conditions
against weeds invasion. All the appeals that diminished the project in compliance came from the
Mount Gibson Iron Ore Mine Project. It was weakened by the Minister reversing a decision by the
EPA that originally found the project environmentally unacceptable.
From the Pilbara, the projects that enhanced in compliance were from the introduction of
management plans and the increased protection for certain rare vegetation. From the projects that
diminished in compliance, they were weakened through the loosening of rehabilitation requirements
and weakening of the conditions in regards to the removal of non-indigenous floral species.
From the Wheatbelt, some of the projects that were enhanced in their compliance were enhanced
69
through the strengthening of conditions to protect vegetation and monitoring requirements. These
include Iron Ore projects as well as a Silicon Project, the Silicon Project Kemerton and Mine. All
the appeals that diminished the project in compliance came from the Koolyanobbing Iron Ore
Project and it was diminished through removing the conditions requiring the proponent to monitor
the area for weeds. The project that contained the appeal that was withdrawn was the
Koolyanobbing Iron Ore - W2 Pit Project. For Mineral Sands projects most of the appeals did not
change the projects. However the appeals that did enhance the projects in compliance were
enhanced through the strengthening of monitoring requirements and conditions to combat dieback.
For the Water Supply project in the South West, most of the appeals did not enhance the project and
they remained at the same level of compliance. For the appeals that did enhance the project, the
project was enhanced through demanding the proponent to prove that the water transfer pipeline
corridor had been located to avoid and/or minimise identified declared rare flora populations prior
to commencing construction.
For projects in the Goldfields, half of the appeals did enhance the projects in compliance and half
did not. The projects that were enhanced in compliance were through the adding of management
plans before ground disturbing activities started and by making the conceptual closure strategy
documents publicly available.
70
Chapter 5. Conclusion
5.1 Projects containing Waterways appeals:
With most appeals against projects, the projects remained at the same level of compliance before
and after the appeals system. There were some exceptions. The results tell us that for projects from
the Pilbara, Gas, and Iron Ore projects and appeals from Private Proponents, most of the appeals
diminished the projects in compliance. The Pilbara region produces 70% of Australia's natural
gas142. The Pilbara region also produces 95% of the Iron Ore in Australia 143. This explains why most
of the projects are located in the Pilbara and why most of them are Gas or Iron Ore developments.
There were a high number of Gas projects from the Kimberley as well, which were appeals in
regards to the Gas project for the Scott Reef Maxima Project 144. The Water Supply projects were all
located in the South West. Much of Perth's Water Supply comes from the South West and is
supplied by the Water Corporation of WA145.
5.2 Projects containing Native Terrestrial Vegetation appeals:

Most of the Native Terrestrial Vegetation appeals against projects did not enhance in compliance
after leaving the appeals system. Most of those appeals were from projects that did not change and
remained at the same level of compliance. A number of appeals did diminish their projects.
However there was a much higher number of appeals that did enhance the projects in compliance
when compared to projects with Waterways appeals. But there was also much fewer Native
Terrestrial Vegetation appeals than there were Waterways appeals. There were 126 Waterways
appeals over 90 Native Terrestrial Vegetation appeals. There was also multiple Native Terrestrial
Vegetation appeals that often dealt with the same issue and were essentially multiples of each other
and repeated their decisions.
142
143
144
145
71
Pilbara Development Commission, Pilbara Regional Economy (2012) <http://www.pdc.wa.gov.au/industry/>.

Ibid.
The Wilderness Society, Woodside Plans to drill Scott Reef (2011)
<http://www.wilderness.org.au/campaigns/kimberley/woodside-plans-to-drill-scott-reef>.
Scott Power, Brian Sadler and Neville Nichols, 'The Influence of Climate Science on Water Management in Western
Australia' (2005) American Meteorological Society, 839, 839.
There was mostly Third Party appellants for projects types of Iron Ore, Minerals Sands and Gas
although Private Proponents were present for these project types. Most of the appeals from projects
were of Iron Ore, Mineral Sands and Gas type. Most projects came from the Wheatbelt, Mid West
and the Pilbara. As mentioned above the Pilbara region produces 95% of the Iron Ore in Australia.
The Iron Ore projects were also located in the Mid West and the Wheatbelt 146. The Mineral Sands
projects were located in the Peel and the Wheatbelt, both regions which do have numerous Mineral
Sands projects147. The Gas projects came from the Pilbara and as mentioned above, the Pilbara
produces 70% of Australia's natural gas.
5.3 Why the majority of appeals from projects complied with Section 4A before entering the
appeals system.
It was found that most projects complied with Section 4A before entering the appeals system.
Before entering the appeals system, EPA reports for the projects are released by the EPA 148. The
EPA reports that are released address environmental factors, recommends conditions and procedures
and identify environmental offsets for the project149. Due to the requirements of EPA reports under
the Act, the EPA reports address issues that arise from the projects and they are able to recommend
conditions that will comply with Section 4A.
5.4 Why are many of the projects not enhanced in compliance?

For most of the Waterways and Native Terrestrial Vegetation appeals from projects that entered the
appeals system complying with Section 4A, most of these projects did not enhance in compliance
leaving the appeals system. For projects that originally complied with Section 4A before entering
the appeals system and did not enhance in compliance, we can assume that because they originally
146
147
148
149
72
Department of Mines and Petroleum, Government of Western Australia, Western Australian Mineral and Petroleum
Statistics Digest 2008-09, <http://www.dmp.wa.gov.au/documents/Statsdigest09web.pdf>.
Wheatbelt Development Commission, Economy (2012) <http://wheatbelt.wa.gov.au/economy>.
Environmental Protection Act 1986 (WA), above n 1, s 44.
Ibid.
did comply they did not need to enhance in compliance. For Waterways appeals, most of the
appeals remained at the same level of compliance. For Native Terrestrial Vegetation appeals,
appeals that diminished projects and appeals that did not change projects combined was higher than
the number of appeals that did enhance the projects in compliance. Due to the fact that certain
projects with Waterways and Native Terrestrial Vegetation appeals are not enhancing in compliance
when they did not comply to begin with and are remaining at the same level of compliance or are
diminished in compliance this indicates that the appeals system is not adding value to the projects
they oversee.
While there were a lot of appeals against projects that did not enhance the projects in compliance,
this is not indicative of all the appeals. For appeals of the Landfill type project the Landfill
Footprint Modification South Cardup Landfill in Perth all the appeals enhanced in compliance. For
the appeals of the Silicon Project Kemerton and Mine in the Wheatbelt, the project enhanced in
compliance. However appeals for projects based in the Pilbara and the Wheatbelt of Gas and Iron
Ore type projects were most likely to have the appeals against those projects to be diminished in
compliance. These projects were weakened mostly through the weakening of monitoring and
rehabilitation requirements, the weakening of protection of flora and fauna and the reversing of
decisions that the EPA originally found that parts or the whole of the project was environmentally
unacceptable.
A cynical person may be tempted to attribute this due to WA's economy. WA has been going
through a mining and natural gas boom for the last few years and in 2011 the mining and gas
industry delivered over $190 billion dollars to Australia 150. WA contributes an estimated 58% of
Australia's Mineral and Energy Exports as of November 2011 151. However there needs to be more
150
151
73
Clancy Yeates, 'Mining boom dumps $190b into Aussie coffers', WA Today (Perth), 8 March 2012
<http://www.watoday.com.au/business/mining-boom-dumps-190b-into-aussie-coffers-20120308-1ulxt.html>.
Government of Western Australia Department of Mines and Petroleum, Quick Resources Facts
research done as to why certain projects are diminishing in compliance or are not enhancing in
compliance when they did not comply to begin with after leaving the appeals system. This thesis
demonstrates that for certain projects, the appeals system is not adding value to them, but there is no
data to show why certain projects are diminished in compliance over others.
5.5 Should the current appeals system be reformed?

From the results it can be seen that current ministerial merits appeals system is not adding value to
certain projects with many diminishing in compliance, after leaving the appeals system. This raises
the question of whether we should reform the appeals system. There has been an ongoing debate
over whether the current ministerial merits review system of the appeals process should be reformed
to make it a more transparent and formalised process 152. Some critics of the current system have
recommended that a specialised court or a tribunal such as the SAT should hear these appeals 153. In
2009 an Industry Working Group established by the Minister for Mines and Petroleum
recommended reforming the appeals system by transferring the responsibility for appeals to the
SAT154. Some argue that the SAT will provide for a higher level of natural justice than the current
ministerial merits review system155. A tribunal such as the SAT is considered to have more
procedural integrity and transparent accountability compared to the current appeals system 156. The
SAT allows full participation of all parties and allows for the public to view proceedings and this
can increase public confidence and greater knowledge of the environmental decision-making
process in total157. A tribunal such as the SAT which constitutes of independent experts can develop
public confidence and provide administrative justice by being able to operate largely, if not
entirely, free from the public policy direction of the Government of the day 158. While the current
152
153
154
155
156
157
158
74
<http://www.dmp.wa.gov.au/7846.aspx
Ibid.
Ibid.
Ibid.
Industry Working Group, above n 99, 55.
M Barker, 'The Emergence of the Generalist Administrative Tribunal in Australia and New Zealand', (paper
appeals system under the EP Act is overseen and decisions are made by the Minister, there is less
Ministerial interference in the SAT159. The president of the SAT is a Supreme Court judge and the
two deputy presidents are District Court judges160. Members of the SAT may be experienced in law
or may be experienced in, or have special knowledge of, relevant professions, occupations and
fields in which the SAT makes decisions161.
It must be mentioned that it is likely that the government in power will be reluctant to give up state
control over the approval processes for natural resources162. It has been argued to change the appeals
system to a tribunal such as the SAT would require significant change to the basic philosophy on
which the act is founded 163. However this argument is based on the idea that large project
development decisions should rest with the government and as political decisions they must be
wholly divorced from matters being considered by a tribunal164.
159
160
161
162
163
164
75
presented at the 8th Australian Institute Judicial Administration Conference, 9-10).

State Administrative Tribunal, About SAT <http://www.sat.justice.wa.gov.au/A/about_sat.aspx?uid=5793-81550296-7651>.
Ibid.
Ibid.
Industry Working Group, above n 99, 55.
Peter Johnston, above n 19, 14.
S Rigney, 'The Role of Procedural Fairness and Ultra Vires in the Judicial Review of Environmental Disputes'
(1993) 10 Environmental Planning and Law Journal 148, 148.
Bibliography.
Articles/Books/Reports:
Angus Morrison-Saunders and Gerald Early, 'What is necessary to ensure natural justice in
environmental impact assessment decision-making?' (2008) 26(1) Impact Assessment and
Project Appraisal 29, <http://researchrepository.murdoch.edu.au/1584/1/ms4.pdf>.
Angus Morrison-Saunders and John Bailey, 'Transparency in environment impact assessment

decision-making: Recent developments in Western Australia' (2000) 18(4) Impact Assessment and
Project Appraisal 260 <http://researchrepository.murdoch.edu.au/1613/1/ms10.pdf>.
April Muirden and John Bailey, 'Presenting Scientific Evidence in Environmental Court Cases:
How science and law meet', (2008), 25 Environmental and Planning Law Journal, 425,
<http://0legalonline.thomson.com.au.prospero.murdoch.edu.au/jour/resultSummary.jsp?
tocType=fullText&sortBy=publicationYear%2FarticleDate&start=1&curRequestedHref=journals
%2FEPLJ%2Fvolumes%2F25>.
Brian J Preston, 'Operating an environment court: The experience of the Land and Environment
Court of New South Wales', (2008) 25 Environmental and Planning Law Journal, 385,
<http://0legalonline.thomson.com.au.prospero.murdoch.edu.au/subscribed/staticfs/journals/EPLJ/L
AWREP-025-EPL-JL-0385.pdf?sessionId=b3b7de900ade6d0543ece626da92dc47>.
C Wood, Environmental Impact Assessment: A Comparative Review, (Harlow: Pearson

Education Ltd, 2nd ed, 2004) 223.
Caroline Williams, 'Combating marine pollution from land-based activities: Australian initiatives'
76
(1996) 33(1-3) Ocean and Coastal Management 87.

David Kriebel et al, 'The Precautionary Principle in Environmental Science' (2001) 109(9)
Environmental Health Perspectives 871.
DE Fisher, Australian Environmental Law, (Lawbook Co, 2003).
Deborah C. Peterson, 'Precaution: principles and practice in Australian environmental and natural
resource management' (2006) 50 The Australian Journal of Agricultural and Resource Economics
469.
Declan Doherty, 'The merits of Western Australia's Environmental appeals regime' (2010)
29(1)Australian Resources and Energy Law Journal, 110 <http://0search.informit.com.au.prospero.murdoch.edu.au/fullText;dn=20102535;res=AGISPT>.
Denscombe, M. (1998). The Good Research Guide for Small Scale Social Research Projects.
Philadelphia: Open University Press.
Department of the Environment, Water, Heritage and the Arts, The Australian Environment Act:
Report of the Independent review of the Environment Protection and Biodiversity Conservation Act
1999, <http://www.environment.gov.au/epbc/review/publications/final-report.html>.
Department of the Attorney General, How to read legislation, a beginner's guide,

<http://www.department.dotag.wa.gov.au/_files/How_to_read_legislation.pdf>.
Edith Brown Weiss, 'Planetary Trust: Conservation and Intergenerational Equity' (1984) 11(4)
77
Ecology Law Quarterly 495.
Environmental Protection Agency (Australia), Public review of the commonwealth

environment impact assessment process, (Commonwealth Environmental Protection Agency,
1994).
Environmental Protection Authority, Government of Western Australia, Environmental Guidance

for Planning and Development, 26 May 2008,
<http://www.epa.wa.gov.au/Policies_guidelines/EAGs/guidance/Pages/2717_GuidanceStatement33
-EnvironmentalGuidancefor.aspx>.
Gamini Herath, 'The Economics and Politics of Wilderness Conservation in Australia' (2002) 15,
Society and Natural Resouces 147.
Gerry Bates, Environmental Law in Australia (LexisNexis Butterworths, 6th ed, 2006).
G D. Mcycrs, 'Meeting Public Expectations - Judicial Review of Environmental Impact Statements

in the United States: Lessons for Reform in Western Australia?' (1996) 3(2) Murdoch University
Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/v3n2/meyers.txt>.
Harold Leventhal, 'Environmental decision-making and the role of the courts' (1974) 122(3)
University of Pennsylvania Law Review 509
<http://0www.jstor.org.prospero.murdoch.edu.au/stable/pdfplus/3311540.pdf?acceptTC=true>.
Henrik Jacobsen and Merete Kristoffersen, 'Case Studies of Waste Minimisation Practices in
78
Europe' (2002) European Environment Agency 4.
J. M. Bailey and S Brash, 'The Environmental Protection Act 1986 (WA): An experiment in nonjudicial appeals', (1989) 6(1), 197, <http://0legalonline.thomson.com.au.prospero.murdoch.edu.au/subscribed/staticfs/journals/EPLJ_BS/LAW
REP-006-EPL-JL-0197.pdf?sessionId=ac0e95080ade6d035b34329ba880b1e1>.
Jason Cabarrs, 'Merits review of Commonwealth environmental decision-making' (2009) 26

Environmental and Planning Law Journal 113
<http://0=legalonline.thomson.com.au.prospero.murdoch.edu.au/subscribed/staticfs/journals/
EPLJ WREP-026-EPL JL0113.pdf?sessionId=b0b744380ade6d0543ece62630018c10>.
John Glasson, Riki Therivel, Andrew Chadwick, Introduction to Environmental Impact

Assessment,(Taylor & Francis, 3rd ed, 2005).
Ken J Walker, Political Economy of Environmental Policy (UNSW Press, 1994).
LeRoy Paddock, 'Environmental accountability and public involvement' (2004) 21(2) Pace
Environmental Law Review 243 <http://digitalcommons.pace.edu/cgi/viewcontent.cgi?
article=1149&context=pelr&seiredir=1#search=
%22Environmental+accountability+and+public+involvemen%22>.
Louis L Jaffe, 'The Right to Judicial Review' (1958) 71(3) Harvard Law Review, 401,
<http://heinonline.org/HOL/LandingPage?
collection=journals&handle=hein.journals/hlr71&div=30&id=&page=>.
79
Michael Stutchbury, 'The Luckiest Country' (2011) 28(1), World Policy Journal 41.
N Harvey, Environmental Impact Assessment: Procedures, Practices and Prospects (Oxford

University Press, 1998).
Nicola Hartley and Christopher Wood, Public Participation in environmental impact

assessment implementing the Aarhus Convention (2005) 25 Environmental Impact
Assessment Review 319,
<http://mahabghodss.net/NewBooks/www/web/digital/nashrieh/Environmental%20Impact
%20Assessment%20Review/Vol.%2025,%20issue%204%20,%20May%202005/5/Public
%20participation%20in%20environmental%20impact%20assessment_implementing%20the
%20Aarhus%20Convention.pdf>.
Nicole Dixon, 'Judicial Review of Environmental decision-making in Queensland' (1995) 3(1)

Griffith Law Review, 94, <http://www.austlii.edu.au/au/journals/GriffLawRw/1994/3.html>.
Office of the Appeals Convenor, Appeal Against Environmental Protection Authority Report and
Recommendations (Report 1322), <https://secure.dec.wa.gov.au/appeals/documents/065-07409%20AC%20Report%20Mungada%20-%20%20Final.pdf>.
Peter McClellan, 'Expert witness the recent experience of the land and environment court', (2005)
83 Australian Construction Law Newsletter, 55,
<http://www.austlii.edu.au/au/journals/AUConstrLawNlr/2005/83.html>.
80
R Harding, 'Ecologically sustainable development: origins, implementation and challenges' (2006)

187 Desalination 229.
Roger Douglas, Administrative Law, (LexisNexis Butterworths, 2nd ed, 2004).
Robert W Malmsheimer, Denise Keele & Donald W Floyd, 'National Forest Litigation in the
US Courts of Appeals'(2004) 102(2) Journal of Forestry, 20,
<http://www.ingentaconnect.com/content/saf/jof/2004/00000102/00000002/art00007>.
Robin Creyke, 'The Criteria and Standards for Merit Review by Administrative Tribunals',
(1998) 9 National Law Review, 1, <http://law.anu.edu.au/UnitUploads/LAWS8236-6494MeritRcipl.PDF>.
S Rigney, 'The Role of Procedural Fairness and Ultra Vires in the Judicial Review of Environmental
Disputes' (1993) 10 Environmental Planning and Law Journal 148.
Sali Jayne Bache, 'Are appeals an indicator of EIA effectiveness? Ten years of Theory and Practice
in WA', (1998) 5(3) Australian Journal of Environmental Management 159.
Scott C Whitney, 'The Case of creating a special Environmental Court system', (1973), 14(3)
William and Mary Law Review, 473, <http://scholarship.law.wm.edu/cgi/viewcontent.cgi?
article=2560&context=wmlr&seiredir=1#search=
%22The+Case+of+creating+a+special+Environmental+Court+system%22>.
Scott Power, Brian Sadler and Neville Nichols, 'The Influence of Climate Science on Water
81
Management in Western Australia' (2005) American Meteorological Society, 839.
Shi-Ling Hsu, 'The Identifiability Bias in Environmental Law' (2008) 35(433) Florida State
University Law Review 433.
William N. Cooke and Frederick H. Gautschi III, 'Political Bias in NLRB unfair labour practice
decisions' (1982) 35(4) Industrial and Labor Relations Review 539.
Case Law:
Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90
LGERA 136.
Australia Conservation Foundation v. Commonwealth (1980) 146 CLR 493.
Legislation:
Administrative Appeals Tribunal Act (CTH).
Environmental Protection Act 1986 (WA).
Environmental Protection Act 1971 (WA).
Environment Protection and Biodiversity Conversation Act 1999 (CTH).
Land and Environment Court Act 1979 (NSW).
82
Other Sources:
Administrative Appeals Tribunal, Who we are,
<http://www.aat.gov.au/AboutTheAAT/WhoWeAre.htm>.
Australian Bureau of Statistics, Year Book Australia, 200910,

<http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/1301.0Chapter18012009%E2%80%9310>.
About SAT (2011) State Administrative Tribunal,

<http://www.sat.justice.wa.gov.au/A/about_sat.aspx?uid=5793-8155-0296-7651>.
Business Dictionary. (2011) Business Dictionary.

<http://www.businessdictionary.com/definition/transparency.html>.
Clancy Yeates, 'Mining boom dumps $190b into Aussie coffers', WA Today (Perth), 8 March 2012
<http://www.watoday.com.au/business/mining-boom-dumps-190b-into-aussie-coffers-201203081ulxt.html>.
David Weber, 'WA, NT rank high for mining investment', 702 ABC Sydney (Sydney), 3 March 2012,
<http://www.abc.net.au/news/2012-03-03/mining-tax-not-discouraging-investment/3866472/?
site=sydney>.
Department of Mines and Petroleum, Government of Western Australia, Western Australian

Mineral and Petroleum Statistics Digest 2008-09,
<http://www.dmp.wa.gov.au/documents/Statsdigest09web.pdf>.
83
Environmental Defenders Office, The Land and Environment Court (3 May 2011) Environmental
Defender's Office New South Wales (Ltd),
<http://www.edo.org.au/edonsw/site/factsh/fs02_4.php#_ftn1>.
Fiona L McKenzie, Nature of Judicial Review (1 July 2010) The Law Handbook
<http://www.lawhandbook.org.au/handbook/ch21s02s01.php#>.
Government of Western Australia Department of Regional Developments and Lands, Pilbara

<http://www.rdl.wa.gov.au/regions/pilbara/Pages/default.aspx>.
Government of Western Australia Department of Mines and Petroleum, Quick Resources Facts
<http://www.dmp.wa.gov.au/7846.aspx>
Industry Working Group, Review of Approval Processes in Western Australia (2009), Department of
Mines and Petroleum,
<http://www.dmp.wa.gov.au/documents/Review_of_Approval_Processes_070809_WEB.pdf>.
Justice Stuart Morris, 'The Emergence of Administrative Tribunals in Victoria' (speech delivered at
the Annual General Meeting of the Victorian Chapter of the Australian Institute of Administrative
Law Incorporated, 13 November 2003, Parliament House, Melbourne).
Land and Environment Court Jurisdiction (28 February 2011) Land and Environment Court
<http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_jurisdictionfull>.
M Barker,'The Emergence of the Generalist Administrative Tribunal in Australia and New Zealand',
(Speech delivered at the 8th Australian Institute of Judicial Administration Conference, 9-10 June
84
2005).
Merriam-Webster Dictionary. (2011) Meriam-Webster. <http://www.merriamwebster.com/dictionary/accountability>.
Peter Johnson, A Discussion Paper on the Appeals System under the Environmental
Protection Act (1991), Environmental Protection Authority,
<http://epa.wa.gov.au/EPADocLib/503_B540.pdf>.
Pilbara Development Commission, Pilbara Regional Economy (2012)

<http://www.pdc.wa.gov.au/industry/>.
Sadler, B 1996 Environmental Assessment in a Changing World: Evaluating Practice to

Improve Performance (Final Report, International Study of the Effectiveness of
Environmental Assessment), International Association for Impact Assessment and the
Canadian Environmental Assessment Agency, Minister of Supply and Services, Hull, Quebec.
Uniform Legislation and Statutes Review Committee, Parliament of Western Australia,

Standing Committee on Uniform Legislation and Statutes Review (2009).
Western Australia, Gazette: Special, No 223, 26 November 2010.
Western Australia, Parliamentary Debates, Legislative Assembly, 24 July 1986, 2538 (Mr Hodge,
Minister for Environment).
85
Western Australia, Parliamentary Debates (Hansard) Vol 306, 1993-94, 4279 (21 September 1993).
Western Australia, Parliamentary Debates, Legislative Council, 6 November 2002, 2642 (Kim
Chance, Minister for Agriculture and Food).
Western Australia, Parliamentary Debates, Legislative Council, 19 November 2009, 9407 (Donna
Faragher, Minister for Environment).
The Wilderness Society, Woodside Plans to drill Scott Reef (2011)

<http://www.wilderness.org.au/campaigns/kimberley/woodside-plans-to-drill-scott-reef>.
Wheatbelt Development Commission, Economy (2012) <http://wheatbelt.wa.gov.au/economy>.
86
Appendix:
Waterways definition from the Environmental Guidance for Planning and Development:
Appeals under the Waterways environmental factor include:
River and stream systems including permanent, seasonal and ephemeral drainage lines;
wetlands connected to the stream systems (that is, those wetlands fed mainly by rivers and
streams);
lakes, estuaries or inlets at the base of these systems; and
depending on the context, may include the floodplains of the above.
Native Terrestrial Vegetation definition from the Environmental Guidance for Planning and
Development:
Appeals under the Native Terrestrial Vegetation environmental factor include:
Vegetation the combinations of plant species within a given area, and the nature and extent
of each combination.
Vegetation unit a general purpose term applied to vegetation categories regardless of the
scale. Examples of vegetation unit terms used in Western Australia are vegetation complex,
vegetation association and vegetation type.
Flora the plant species, subspecies and varieties in a given area.
Significant vegetation includes but is not limited to native vegetation with any of the
following characteristics:
A threatened ecological community;
Below a threshold level;
scarcity;
unusual species;
novel combination of species;
87
key habitat for threatened species or large populations;

representative of the range of a vegetation unit including the extremes of the range, or a
good example in prime habitat; and
a restricted distribution.
Significant flora includes but is not limited to flora with any of the following
characteristics:
Declared Rare Flora or Priority Flora;
Key role in a habitat for threatened species or large populations;
Relic status;
Anomalous features that indicate a potential new discovery;
Representative of the range of a species including the extremes of the range;
A restricted subspecies, variety or naturally occurring hybrid; and
Local endemism or a restricted distribution.
Ecological community naturally occurring biological assemblage in a particular type of

habitat. The scale at which ecological communities are defined will depend on the level of
detail in the information source. For practical reasons, ecological communities are often
represented by vegetation units.
Database Glossary:
A Decision allowed
P Decision allowed in part
D- Decision dismissed
Y Yes
88
N No
S Strengthened
W Weakened
CN Conditions changed but neutral change
ND Neutral change
R - Remitted
Wi - Withdrawn
Locations:
Gascoyne
Goldfields
Great Southern
Kimberley
Mid West
Peel
Pilbara
South West
Wheatbelt
Perth
Project type:
Chemical
Iron Ore
Port
Mineral Sands
89
Silicon
Gas
Town Planning
Power Station
Molybdenum
Wastewater
Alumina Refinery
Infrastructure
Water Supply
Seismic Survey
Landfill
Solar Salt Field
Fishing
Residential
Agriculture
Gypsum
Tourism
90
Excel Database:
An example of how the data was added in the excel databases.
Proposal
Development of Industrial
Land on the Burrup Peninsula
for Future Gas Development
Year
Proponent
Appellants (Appeal #)
Region of Project Type of Project EPA Report Recommendations

Vegetation Vegetation and Flora Management Plan: Having
particular regard to the:
(a) management framework for the Burrup Peninsula;
(b) Vegetation and Flora Management Plan; and
(c) proposed conservation zones,
it is the EPAs opinion that the proposal can be managed to meet the
EPAs
environmental objective for this factor. The EPA notes that the
In relation to the ninth groundproponent

of appeal,
has committed to preparing a Vegetation and Flora
concern
could
Pilbara was raised
Gas that the proposal
Management
Plan (VFMP)
have an
impact on significant vegetation off-site and the
level of risk to that vegetation should be
Does it fulfil the conservation of Does it fulfill the principles
quantified and appropriately managed. The
Does it fulfil intergenerational biological diversity and ecological relating to improved valuation, Does it fulfil the principle of waste
EPA advised that the key threat to vegetation
equity principle?
integrity
pricing and incentive mechanisms minimisation
Grounds of Appeal
outside the disturbance footprint would be
The appellant is concerned that it is not clear what would be included in the plan.
from accidental or intentional damage during
In
the
The appellant believes the plan should contain:
site preparation works. The Vegetation
and
A description
of the vegetation offsite that could be impacted by the project
Flora Management Plan would thusand
need
to
what
ensure that the disturbance footprint
is
are the threatening
processes; and
accurately marked and that personnel
What
are is the risk of other vegetation communities that have limited distribution
being
appropriately inducted to avoid accidental
Y
Y
Y
Y
impacted
and/or unauthorised access to other
areas by
ofthe proposal.
the
site.
Convenor's Decision
Convenor's decision summary
Minister's Decision
Minister's decision summary
The Appeals Convenor considered that the
The appellant is concerned that the proposal could have an impact
limited nature of this proposal represents a
on significant vegetation
limited
off-site and wants the nature and extent of that vegetation identified
threat to the vegetation off-site and the
and the level of risk to
proposed Vegetation and Flora Management
that vegetation quantified and appropriately managed. It is
Plan, if
considered that the limited nature
implemented,
would
provide
adequate
of this proposal represents a limited threat to the vegetation off-site
protection to vegetation off-site. These
and the proposed
concerns are
Vegetation and Flora Management Plan, if implemented, would
more relevant to the overall proposal and
provide adequate protection
environmental assessment. The Minister
to vegetation off-site. This issue is more relevant to the overall
supported
proposal and environmental
this view and consequently, dismissed this
Assessment.
D
ground of appeal.
D
91
2006 Woodside Energy Ltd
third party appellants
Conditions
strengthened,
loosened, neither
Ministerial Statement
ND
No mention of this factor in the

statement
N
92
Does it fulfil the precautionary Does it fulfil

principle
principle?
intergenerational
Does it fulfil the conservation of Does it fulfill the principles relating to

equity biological diversity and ecological improved valuation, pricing and Does it fulfil the principle of waste
integrity
incentive mechanisms
minimisation
If there's one thing America needs, it's more lawyers. Can you imagine a world without lawyers?
Lionel Hutz, The Simpsons
93

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 the Environmental Protection Act

Chapter 2. Literature Review

2.1 Environmental decision-making

The different methods of reviewing environmental decisions

Criticisms of the current appeals system

Chapter 4. Results and Discussion

Projects containing Waterways appeals between 2006 and 2010

5.2 Projects containing Native Terrestrial Vegetation appeals

5.3 Projects containing Native Terrestrial Vegetation appeals

I proved you can teach an old dog new tricks.

Environmental Protection Act 1986 (WA) s38.

connected with the foregoing6.

Environmental Protection Act 1986 (WA), above n 1, long title.

Chapter 2. Literature Review:

2.1 Environmental decision-making:

Review 243, 243 <http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1149&context=pelr&seiredir=1#search=%22Environmental+accountability+and+public+involvemen%22>.

2.2 The different methods of reviewing environmental decisions:

Harold Leventhal, above n 31, 509.

2.3 The history of the appeals system in the EP Act:

Declan Doherty, above n 20, 116.

2.4 Criticisms of the current appeals system:

Western Australia, Gazette: Special, No 223, 26 November 2010.

(http://portal.appealsconvenor.wa.gov.au/). Another reason why the research was limited to appeals

The following information from the document analysis was recorded:

The EPA report recommendations;

The project type;

The grounds of appeal raised;

The Convenors recommendation;

The Minister's decision;

The precautionary principle;

The intergenerational principle;

The principle of the conservation of biological diversity and ecological integrity;

The principle of waste minimisation.

The Precautionary Principle:

Environmental Protection Act 1986 (WA), above n 1, s4A.

Environmental Protection Act 1986 (WA), above n 1, s 4A.

environmental degradation119. Weak formulations of the precautionary principle act as a rebuttal

Intergenerational Equity Principle:

Environmental Protection Act 1986 (WA), above n 1, s 4A.

The principle of conservation of biological diversity and ecological integrity:

The principle relating to improved valuation, pricing and incentive mechanisms:

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

Environmental Protection Act 1986 (WA), above n 1, s 4A.

The Principle of Waste Minimisation:

Chapter 4. Results and Discussion

Table 1: Number of appeals in each year between 2006 and 2010.

Percentage of appeals that complied and enhanced in compliance

Solar Salt Field

Solar Salt Field

Comparison of appeals against projects with appellant type:

Appellant Third Party

Percentage of appeals that complied before entering the appeals system

Appellant Third Party

Number of Native Terrestrial Vegetation appeals against projects:

Comparison of appeals from projects with their location:

Percentage of appeals that complied before entering the appeals system

Solar Salt Field

Solar Salt Field

Appellant Third Party

Percentage of appeals that complied before entering the appeals system

Appellant Third Party

that complied and enhanced in compliance

5.2 Projects containing Native Terrestrial Vegetation appeals: