Background
South Australia began redeveloping the North Adelaide Public Golf Course under state legislation. The project included reconfiguring the courses, removing about 585 trees, demolishing an existing clubhouse, and constructing a new clubhouse, car park, irrigation infrastructure, superintendent facilities, driving range and mini-golf facility. By the time Edwin Kemp Attrill and Janette Eve Milera commenced proceedings, 401 trees had been removed.
The applicants alleged that the redevelopment was a controlled action requiring Commonwealth approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). They contended that the project had, would have or was likely to have a significant impact on the National Heritage values of the listed Adelaide Park Lands and City Layout, contrary to s 15B, and that the tree removal had, would have or was likely to have a significant impact on the vulnerable Grey-headed Flying-fox, contrary to s 18. They sought declarations, remedial orders and an injunction preventing further work.
The Court’s Holding
Charlesworth J dismissed the originating application. The applicants bore the burden of proving the alleged contraventions or threatened contraventions; South Australia did not have to prove that its pre-project self-assessments were correct. The Court was not satisfied that the applicants had established that the redevelopment, considered as a series of activities, had, would have or was likely to have a significant impact on the specified National Heritage values of the listed place. The statutory inquiry concerned those listed values across the National Heritage place, not whether the works affected the park lands generally or whether the project was desirable.
The Court was also not satisfied that tree removal had, would have or was likely to have a significant impact on the Grey-headed Flying-fox as a species. Although impacts on individuals and the nearby Botanic Park breeding camp were relevant, s 18 required assessment of the species as a whole. Evidence of substantial remaining forage within the park lands and the animals’ broader foraging range prevented the Court from drawing the applicants’ proposed inferences. Nor did the precautionary principle alter the applicable burden or standard of proof. The proceeding was dismissed, with costs to be determined separately.
Key Takeaways
- An EPBC Act challenge under s 15B must prove a significant impact on the National Heritage values for which the listed place is protected, rather than an adverse effect on the place in a general sense.
- Under s 18, the relevant question is the significant impact on the listed threatened species as a whole, although effects on individuals, habitat and local populations may inform that assessment.
- The applicants retained the burden of proving the alleged contraventions; evidentiary gaps could not be resolved by requiring the State to prove that adequate habitat or forage remained.
Why It Matters
The decision illustrates the evidence-intensive nature of proceedings alleging that a project is a controlled action under the EPBC Act. Even extensive works within a National Heritage place, including large-scale tree removal, will not establish liability unless the evidence connects those works to a significant impact on the protected statutory value or listed species.
It also confirms that the precautionary principle does not displace ordinary rules governing the burden and standard of proof in Federal Court enforcement proceedings.