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Scoresby Freeway Referral

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Scoresby Freeway Referral ISSUE 5 APRIL 2003 ENVIRONMENT & PLANNING Scoresby Freeway Inside: referral ‘misleading’ In a case decided on 8 April 2003, the Federal Court found that the The decision is referral of the proposed Scoresby Freeway, made by the Victorian likely to become Government to the Commonwealth Environment Minister under a signifi cant the Environment Protection Biodiversity and Conservation Act, consideration for was misleading. Partner Chris Schulz and Lawyer Naomi Lindsay similar major projects look at the ramifi cations of the ruling. The case in question The case, Mees v Roads Corporation [2003] FCA 306, concerned the referral of two parts of the proposed Scoresby Freeway by the Victorian Government under the Environment Protection Biodiversity and Conservation Act 1999 (Cth) (the EPBC Act) to the Commonwealth Minister for the Environment. The proposed Scoresby Freeway, to be built in Melbourne’s eastern suburbs, is intended to provide a link between the northern end of the Frankston Freeway and Monash Freeway at Scoresby (the southern section) and a link between the Monash Freeway and the Eastern Freeway at Ringwood (the northern section). Dr Paul Mees, a former president of the Public Transport Users Association, brought the action against VicRoads, the State of Victoria and the Minister Your publication: for Transport, seeking an injunction under the EPBC Act to restrain the Victorian Government from taking further action relating to the construction of the Scoresby If you would prefer to receive Freeway until alleged misleading information had been corrected. It is an offence under our publications in electronic the EPBC Act to provide false or misleading information in order to obtain approval for a format, please email: project. [email protected] Dr Mees contended that: www.aar.com.au • there was a secret plan within the bureaucracies of VicRoads and the Victorian VISIT OUR WEB SITE Government to construct the fi nal freeway link to enable a Metropolitan Ring Road; TO READ ALL FOCUS EDITIONS and • the construction of the Scoresby Freeway will create demand so that the completion of the last link in the Metropolitan Ring Road is inevitable. He alleged that because of ISSUE 5 APRIL 2003 this, it should have been mentioned in the referral has no fact-fi nding role in the process of examining a documents to Environment Australia. referral of a proposed action. The Minister must make A referral is required under the EPBC Act for actions a decision on the information provided in the referral. likely to have a signifi cant impact on a matter of national environmental signifi cance. Two referrals to What are the likely Environment Australia were made for the Scoresby ramifi cations? Freeway by the Victorian Government. As part of the The judgment has been reserved – both parties were referrals, the Victorian Government was required under required to serve, on 14 April, the minutes of the orders the EPBC Regulations to state whether, and in what they propose should be made. A further hearing is way, the proposal related to other actions or proposals expected to be held on 23 April. The likely outcome in the region. The referral form cited a number of will be that the Victorian Government must correct related transport projects to the Scoresby Freeway. the misleading information by providing additional The alleged provision of misleading information related information on the fi nal link in the Ring Road and/or to the statement in the referral that, although there had resubmitting its referral. been an investigation of routes to create a Metropolitan Ring Road in some previous government strategies, The case provides an insight into the types of ‘the current Government has clearly stated that there considerations a court may fi nd relevant when is no proposal for a new freeway linking Scoresby determining whether or not a referral under the EPBC Freeway/Eastern Freeway with the Metropolitan Ring Act is misleading. Road’. It was also stated that, as a result of this, the referral would have no effect on national environmental The decision is likely to become a signifi cant values in the Bulleen/Banyule Flats area. consideration for other similar major projects where referral to the Commonwealth Environment Minister Key fi ndings is required under the EPBC Act. It is clear that Justice Gray rejected Dr Mees’ ‘secret plan’ allegation, proponents should take care when drafting their but held that the construction of the Scoresby Freeway referral documentation and should ensure that the ‘creates a strong chance that a freeway link will be potential impact on matters of national environmental built in the future’. Accordingly, the failure to refer to the signifi cance for related projects is mentioned, or carry strong chance of a future freeway link through Bulleen the risk that ‘a failure to reveal the full picture would in the context of what was said about the relationship render the document misleading’. The issue of what to of the proposal to other actions or proposals in the include in referral documentation has been the subject region, was misleading. The court held that, by of much debate since the inception of the EPBC choosing to mention the other related projects, the Act. This decision makes it clear that a risk averse Victorian Government took on the risk that a failure approach would be to include more information rather to reveal the full picture would render the document than less within the referral documentation, particularly misleading. It was stated that the Environment Minister in relation to other actions or proposals in the region. For further information, please contact: Chris Schulz Jim Parker Ian Hodgetts Nic Tole Partner, Melbourne Partner, Sydney Partner, Brisbane Partner, Perth Ph: +61 3 9613 8772 Ph: +61 2 9230 4362 Ph: +61 7 3334 3528 Ph: +61 8 9488 3762 Sydney [email protected] [email protected] [email protected] [email protected] Melbourne Brisbane Perth Port Moresby Singapore Hong Kong Jakarta Shanghai Bangkok Have your details changed? Phnom Penh If your details have changed or you would like to subscribe or unsubscribe to this publication or others, please go to www.aar.com.au/general/subscribe.htm 7837 or contact Barbara Leis on +61 7 3334 3371 or email [email protected] www.aar.com.au.
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