How we investigate appeals

Upon lodgement of an appeal, the Appeals Convenor determines the most appropriate method of investigation under the Environmental Protection Act 1986 (EP Act), based on the nature and complexity of the issues raised.

An appeals committee may be appointed to investigate and report on an appeal. The process outlined below applies to investigations conducted by both the Appeals Convenor and appeals committees.

Appeals under the EP Act are merits-based, meaning that:

• Investigations focus on the substance of the issues, rather than legal technicalities.
• The Appeals Convenor acts according to equity, good conscience, and the substantial merits of the case.
• The Minister considers relevant facts, evidence and the application of legislation and policy to determine the correct and preferable outcome.
• Legal validity is not assessed through appeals, this is a matter for the Supreme Court.

We conduct a thorough analysis of:

• The grounds of appeal and the original decision.
• Submissions from the appellant, proponent and the original decision-maker (e.g. the Environmental Protection Authority, the Department of Water and Environmental Regulation, or the Department of Mines, Petroleum and Energy)
• Independent expert advice, where needed, for complex or contested scientific matters.

We request a report from the original decision-maker under section 106 of the EP Act. The Appeals Convenor will inform the parties of the section  106 report and afford procedural fairness. 

Appeals committees follow a similar process under section 109 of the EP Act.

During the investigative process the Appeals Convenor may meet with:

• appellants
• proponents
• the original decision-maker.

These meetings are informal and aim to clarify issues and explore resolution. Legal representation is not required. In some cases, combined meetings may be held to assist the appeals process.

We ensure:

• No officer with a perceived, potential or actual conflict of interest is involved in an investigation.
• Appeals involving any conflicts may be referred to an appeals committee.
• The Minister does not meet or discuss the appeal with appellants or proponents during an active appeal.

The appeals process is an extension of the assessment regime and is not intended to provide reassessment. 

EPA reports

We consider whether the EPA has conducted the environmental impact assessment with sufficient consideration of the relevant matters. This includes the following matters or considerations from the EPA’s Statement of environmental principles, factors, objectives and aims of EIA (April 2023):

• Values, sensitivity and quality of the environment that is likely to be impacted.
• Extent and consequence of the likely impact.
• Cumulative impacts.
• Level of confidence in the prediction and mitigation of impacts.
• Public interest.

Clearing permits

We consider:

• Schedule 5 of the EP Act principles for clearing native vegetation.
• Relevant planning instruments.
• Other relevant matters.

Works approvals and licences

We consider:

• Whether conditions are necessary or convenient for the prevention, control, abatement or mitigation of pollution or environmental harm.

Environmental protection and vegetation conservation notices

We consider:

• Whether requirements are necessary or convenient for the prevention, control, abatement or mitigating of pollution or environmental harm.
• Whether there is a reasonable basis to suspect unlawful clearing.
• Whether exemptions apply.
• The effectiveness of conditions and any new relevant information.

• We provide a report and recommendations to the Minister for the Environment.
• The Minister may allow (in full or part) or dismiss the appeal.
• For appeals investigated by an appeals committee, the Minister must allow or dismiss the appeal in accordance with the committee’s recommendations.
• For appeals against EPA report content or recommendations, outcomes include:
  • Remitting the proposal to the EPA for assessment.
  • Varying conditions.

When the decision is published you can find it at Search appeal.

While there are no statutory timeframes for investigating appeals, we commit to keeping our stakeholders updated regularly on the progress of the appeal. We aim to submit appeal reports to the Minister within 60 days of receiving final responses from the original decision-maker and the proponent.

Once the Minister for the Environment has made a decision on an appeal, written notice of the outcome is provided to:

• the appellant
• the original decision-maker (e.g. the Environmental Protection Authority, the Department of Water and Environmental Regulation, or the Department of Mines, Petroleum and Exploration)
• the proponent, licence or works approval holder or landholder
• any relevant decision-making authority.

The Office of the Appeals Convenor will email the relevant parties as soon as practicable following the Minister’s decision.

During the appeal investigation:

• The name of the appellant and the grounds of appeal are shared with the proponent, the original decision-maker and any other relevant decision-making authorities.
• In exceptional circumstances, an appellant may request in writing that their name be withheld. This request must clearly explain the reasons for confidentiality.

After the Minister’s decision:

• Appeal details, including the names of appellants, are published in accordance with the Environmental Protection Regulations 1987.

The Minister’s decision on an appeal is final. There is no further right of appeal under the Environmental Protection Act 1986.

If a party believes that a legal error has been made in the decision-making process, then they may seek judicial review through the Supreme Court of Western Australia.

The SAT does not hear appeals under the Environmental Protection Act 1986.

However, SAT is responsible for appeals under water legislation, such as the Rights in Water and Irrigation Act 1914. For more information, visit the SAT website.

Contact the Office of the Appeals Convenor for assistance:

Address

Office of the Appeals Convenor

Level 18, The Mill Green Complex , 197 St Georges Terrace , PERTH WA 6000

Telephone

61 8 6364 7990

Email

admin@oac.wa.gov.au