Friends of Gelorup Corridor loses Federal Court appeal against allowing BORR land-clearing works to go on

A South West environmental action group has lost another legal bid to try and stop construction of the Bunbury Outer Ring Road in the latest instalment of its long-running stoush with Main Roads WA and the Federal Minister for Environment. A Federal Court appeal lodged by the Friends of the Gelorup Corridor against a December 2022 decision to allow land-clearing works on the southern section of the Bunbury Outer Ring Road to continue has lost, with Justices Darren Jackson, Michael Feutrill and Geoffrey Kennett handing down their decision to dismiss the appeal on Tuesday. The Friends of Gelorup lodged an appeal against the original Federal Court decision in May, challenging the original decision handed down by Justice Craig Colvin on the basis of “flawed” offsets approved by Federal Environment Minister Tanya Plibersek. Under Federal law, Main Roads WA was required to demonstrate how it would compensate for the BORR construction’s environmental impact, often through an “offset” by securing and maintaining land of a similar size. Despite its offset plan being deemed inadequate by the minister’s own delegate, Main Roads was given the go-ahead to begin clearing provided it lodged a sufficient proposal at a later date. The case hinged on whether the deferral of such a critical task was permissible under the law. In their appeal, the Friends of Gelorup Corridor contended the effect of the offset conditions was to defer a significant part of the evaluative task the minister was required to perform as part of deciding whether to approve the action. However, Justice Michael Feutrill stated in his reasons for the joint decision that the Friends of Gelorup Corridor failed to demonstrate that the minister’s delegate overlooked the precautionary principle. “There were no findings or conclusions of the delegate from which it could be inferred that she failed to ‘take account of’ or ‘take into account’ the precautionary principle,” he stated. “Further, the offset conditions require Main Roads to submit to the Minister’s satisfaction an offset strategy that meets the requirements of the Offsets Policy. “Therefore, preventative measures in the form of offsets intended to counterbalance the residual impacts of the approved action have been attached to the approval. “The residual environmental damage that will be caused by the approved action will be offset by preventing environmental damage elsewhere.” Environmentalist and former senator Bob Brown slammed the Federal Court decision, labelling the outcome “a travesty of natural justice by an anti-environmental judicial mindset”. “The Federal Environment Protection and Biodiversity Conservation Act could have been read by this court to protect the environment but it has thrown environmental protection to the bulldozers. “The court simply endorsed the Minister for the Environment Tanya Plibersek’s failure to protect the environment, full stop. “For any fair-minded person thinking that Commonwealth law should urgently protect matters of national environmental importance, not least critically-endangered Australian animals, this is a stinker of a judgement. “It will crush the spirit of the wonderful Friends of the Gelorup Corridor who have spent 25 years campaigning for the endangered creatures in their neighbourhood woodland.” Dr Brown said the decision also pushes the critically endangered western ringtail possum closer to extinction, along with affecting other native animals and trees in the area. “Six (western ringtail possums( were killed when the WA Main Roads bulldozers moved in and none of the 70+ possums displaced were safely rehoused in the farcically-delayed ‘offset area’.,” he said. “Nor has any replacement forest been established for the three species of Black Cockatoos which found habitat in the now blitzed Gelorup Corridor woodland. “Two of the world’s largest mistletoe trees, alive and flourishing last year, are now somewhere in WA Main Roads mulch heaps. “They didn’t even rate a mention in the political or judicial proceedings that have led to this horror outcome for the Australian environment.”