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Bunbury Ring Road’s fate sealed as court dismisses last-ditch bid to stop clearing
A South West lobby group rallying to stop the clearing of a biodiversity hotspot to make way for the Bunbury Outer Ring Road has lost an 11th-hour bid to overturn its approval.
The judgment handed by Justice Craig Colvin comes one week after the long-running stoush between the Friends of the Gelorup Corridor, the state’s roads authority and federal Environment Minister Tanya Plibersek over the road’s southern section came to a head in the Federal Court.
Inset: The western ringtail possum (ADRIAN WAYNE/PARKS AND WILDLIFE); Activists stand in the way of clearing works for the Bunbury Outer Ring Road earlier in August (SOUTH WEST FOREST DEFENDERS).Credit: ADRIAN WAYNE/SOUTH WEST FOREST DEFENDERS
The community environmental group had attempted to poke holes in the approval process, which gave Main Roads permission to clear 70 hectares of land to build a 10.5-kilometre highway through Gelorup, about 164 kilometres south of Perth.
The group’s lawyer Angel Aleksov accused the federal government of handing Main Roads WA blank-cheque conditions to destroy the site, which is home to tuart and banksia woodlands and habitat for the critically endangered western ringtail possum, the black cockatoo and the black stripe minnow.
Under federal law, Main Roads was required to demonstrate how it would compensate for its environmental impact, often through an “offset”: 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.
During the trial, Aleksov argued the approval should not have been granted without it, claiming the conditions were blank-cheque and allowed Main Roads to treat the compensation plan as an afterthought.
The offset plan’s shortcomings were laid bare during the trial, with Plibersek’s own lawyer Emrys Nekvapil revealing it was built on the assumption there would be no loss of life.
That is despite data which indicated as many as 72 possums could be killed.
Aleksov claimed the government policy guiding offset plans was no more than a basic checklist of what should be included and argued the minister’s delegate could not have been certain the plan would be fair compensation.
But the minister’s lawyer defended the approval, insisting the conditions applied were adequate and that there had been extensive work done into the impact of the project.
Main Roads’ lawyer Fiona Seaward told the court the authority had swathes of information about the environmental impact of the works and what would be required to produce a satisfactory offset strategy.
She dismissed the argument that there was uncertainty about what appropriate compensation must achieve, with Main Roads bound by comprehensive guidelines and frameworks.
Clearing works, which were paused for the possum breeding season, are expected to begin again in March.
The infrastructure project, the largest to be undertaken in regional Western Australia, has blown out to more than $1.2 billion, which is almost double initial projections.
A recent landmark court case in Tasmania established that the federal minister, in making decisions on the environment, must apply the precautionary principle – which aims to put a check on actions where the risk of harm is scientifically plausible, even if uncertain.
This case had been touted as the next test of that precedent, with Aleksov having attempted to cast doubt over whether it was applied.