This case concerned a community environmental group, Your Water Your Say Action Group Inc. The group challenged an alleged decision of the Federal Minister for the Environment, Heritage and the Arts, to allow “preliminary works” to commence on a desalination facility on Victoria's coast, before completion of the Environment Protection Biodiversity Conservation Act approvals process for the final desalination facility. The “preliminary works” formed part of the tender process for the final construction of the desalination facility. When referring the controlled action to the Minister, the State of Victoria expressly excluded the “preliminary works” from the matter's being referred for assessment.

The Federal Minister's decision requiring approval of the final project stated that the “preliminary works”: “are excluded from the scope of this referral decision and do not require approval under the EPBC Act”.

Heerey J found that no decision was made by the Federal Minister for the Environment, Heritage and the Arts. And that this statement was merely a statement of fact. In addition, because the “preliminary works” had not been referred to the Minister, the Minister had no power to make any such decision under the Environment Protection Biodiversity Conservation Act 1999 (Vic).

It then fell upon the applicant to show that the “preliminary works” would have a significant effect on a matter of National Environmental Significance, such that an injunction (to stop the “preliminary works”) should be granted under EPBC Act s475. The applicant was unable to provide any admissible evidence to show that this would be the case and therefore the State of Victoria was able to commence work on the site.

Following this decision the Federal Court made a costs order against the community group. The result of this order was that the group was ordered to pay part of the legal costs of the Minister for the Environment, Heritage and the Arts, and the State of Victoria.

This decision is significant because the Federal Court distinguished the case from Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (2008) 165 FCR 211, where the Federal Court had declined to make an order that the unsuccessful community group pay the legal costs of the other parties.

• The first decision is available on Austlii

• The second decision is available on Austlii