Austral Monsoon Industries Pty Ltd v Pittwater Council - [2009] NSWCA 154

No judgment structure available for this case.

Reported Decision: 75 NSWLR 169166 LGERA 436[2010] ALMD 888

New South Wales

Court of Appeal

CITATION: Austral Monsoon Industries Pty Limited v Pittwater Council [2009] NSWCA 154
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 March 2009

JUDGMENT DATE:
18 June 2009

JUDGMENT OF: Spigelman CJ at 1; McColl JA at 130; Handley AJA at 131

DECISION: 1 The appeal and first cross-appeal are allowed.
2 Set aside Order 3 of the orders made 28 April 2008.
3 In place of Order 3 of the orders made on 28 April 2008, declare that:
(i) The opinion of the Minister as expressed in the “Record of Minister’s Opinion for the Purposes of Clause 6 of the State Environmental Planning Policy (State Significant Development) 2005”, made by the Minister and dated 3 May 2007, is valid in respect of development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005.
(ii) The Minister for Planning is the consent authority in respect of development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005.
(iii) Development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005 remains a development application lodged pursuant to the Environmental Planning and Assessment Act 1979 in the form lodged at that time and is able to be determined by the Minister in accordance with the provisions of that Act.
4 Set aside Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below.
5 In place of Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below, order that the first respondent pay the appellant’s costs of the proceedings below as agreed or assessed.
6 Grant leave to the first respondent to file the second cross-appeal.
7 The second cross-appeal is dismissed.
8 The first respondent pay the appellant’s and the second respondent’s costs of these proceedings.

CATCHWORDS: ADMINISTRATIVE LAW – judicial review – improper purpose – irrelevant consideration – Minister’s opinion – briefing note – establishing purpose of decision-maker – whether Minister’s opinion formed for improper, collateral purpose – consequences of Minister’s opinion – whether briefing note evidence of improper purpose – whether Minister failed to ask himself correct question or failed to take account of mandatory relevant consideration – whether Minister considered whether development “only of local environmental planning significance” – State Environmental Planning Policy (State Significant Development) 2005 (NSW), cl 6, Sch 1, cl 14 - ENVIRONMENT AND PLANNING – State significant development – nature of Minister’s opinion – marina – validity of Minister’s opinion that development State significant – application of repealed legislative scheme to development pending – basis on which application made – whether Minister or council consent authority – whether Minister’s opinion applies to development application as amended – whether original development application withdrawn or amended – Environmental Planning and Assessment Act 1979 (NSW), s 76(7) – Environmental Planning and Assessment Regulation 2000 (NSW), cl 8J – State Environmental Planning Policy (State Significant Development) 2005 (NSW), cl 6, cl 52, cl 55, Sch 1, cl 14 - STATUTORY INTERPRETATION – transitional provisions – purposive approach – reading words in Act – legislative history – futility – application of repealed State significant development scheme to development pending – “opinion that development is State significant development” – where term/phrase appears several times in provision – Environmental Planning and Assessment Act 1979 (NSW), s 76(7), Sch 6 – Environmental Planning and Assessment Regulation 2000 (NSW), cl 8J(7) - WORDS AND PHRASES – “opinion” – “that”

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005
Environmental Planning and Assessment Amendment (Major Projects – Transitional Provisions) Regulation 2005
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Pittwater Local Environmental Plan 1993
State Environmental Planning Policy (Major Projects) 2005
State Environmental Planning Policy (State Significant Development) 2005
State Environmental Policy No 55 – Remediation of Land
State Environmental Policy No 71 – Coastal Protection

CASES CITED: Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Mills v Meeking (1989–1990) 169 CLR 214
Minister for Planning v Gales Holdings Pty Ltd [2006] NSWCA 212; (2006) 146 LGERA 450
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Firns [2001] NSWCCA 191; (2001) 51 NSWLR 548
R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736
R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681
Ravenscroft v Nominal Defendant [2007] QCA 435; [2008] 2 Qd R 32
Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87
Wentworth Securities Ltd v Jones [1980] AC 74

PARTIES: Austral Monsoon Industries Pty Limited (Appellant)
Pittwater Council (First Respondent)
Minister for Planning (Second Respondent)

FILE NUMBER(S): CA 40136/08

COUNSEL: M G Craig QC, M Staunton (Appellant)
N Hutley SC, R Lancaster (First Respondent)
N J Williams SC, S A Duggan (Second Respondent)

SOLICITORS: Wilshire Webb Staunton Beattie (Appellant)
Mallesons Stephen Jaques (First Respondent)
Minister for Planning (Second Respondent)

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 41079/07; LEC 10076/07

LOWER COURT JUDICIAL OFFICER: Lloyd J

LOWER COURT DATE OF DECISION: 22 January 2008; 28 April 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Pittwater Council v Minister for Planning [2008] NSWLEC 26;
Pittwater Council v Minister for Planning (No 2) [2008] NSWLEC 153

- 37 -

CA 40136/08

SPIGELMAN CJ
McCOLL JA
HANDLEY AJA
Thursday 18 June 2009

Austral Monsoon Industries Pty Ltd v Pittwater Council

Facts

On 10 June 2005, the appellant, Austral Monsoon Industries Pty Limited (“Austral”), lodged a development application (“the Original DA”) with the second respondent (“the Minister”).

On 14 February 2006, the Minister purported to refuse the Original DA. On 3 May 2007, the Minister recorded his opinion that the development was of a kind described in cl 6 and cl 14 of Sch 1 of the State Environment Planning Policy (State Significant Development) 2005 (“SEPP (SSD)”). This would have the consequence of making the development State significant, for the purpose of s 76A(7)(a)(i) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) (“the Minister’s Opinion”). (Section 76A(7) had been repealed on 1 August 2005 and new provisions had been introduced for dealing with similar developments.)

On 4 May 2007, Austral amended the Original DA (“the Amended DA”).

On 26 October 2007, the Council commenced Class 4 proceedings in the Land and Environment Court of New South Wales (“the LEC”), relevantly seeking a declaration that the Minister’s Opinion was invalid. Justice Lloyd held that the Minister’s Opinion related to the Original DA, not the Amended DA; therefore, it was of no effect and the consent authority was the Council, not the Minister. Austral appealed and the Council and the Minister cross-appealed.

The issue before the Court of Appeal is the validity of the Minister’s Opinion.

HELD (per Spigelman CJ, McColl JA and Handley AJA agreeing)

I. Application of “State significant development regime” under s 76A(7) of the EP&A Act and the SEPP (SSD) to Austral’s Development

(a) Interpretation of Clause 8J(7)

Carr v Western Australia

Minister for Planning v Gales Holdings Pty Ltd

Wentworth Securities Ltd v Jones

Mills v Meeking

Newcastle City Council v GIO General Ltd

Bermingham v Corrective Services Commission of New South Wales

Kingston v Keprose Pty Ltd

R v Firns

R v PLV

R v Young

Ravenscroft v Nominal Defendant

2. This interpretation is consistent with the purpose of cl 8J, which is to ensure that existing applications are dealt with under the regime extant at the time they were submitted: [55] [60] [130] [131]. The interpretation also ensures that subclause (7) is not futile: [48]–[52] [130] [131].

3. Clause 8J(7) encompasses the SEPP (SSD) and s 76A(7)(a) because it is intended to deal with matters that have not been determined to be “State significant development” at the date the 2005 amendments commenced: [57] [130] [131].

(b) Amended DA and Withdrawal of Original DA
4. The relevant application for the purposes of formulating the Minister’s Opinion was the Original DA upon which the Minister in fact formed the opinion. Once that opinion was formed, cl 8J(7) could be given force and effect, so that the application was to be determined, “unless withdrawn by the applicant”, as if the 2005 amendments had not been made: [76] [130] [131] .

5. The Amended DA did not constitute a withdrawal of the Original DA, pursuant to cl 52 of the Environmental Planning and Assessment Regulation 2000 and was not in substance a different development. The amendments clearly fell within cl 55, the amendment provisions of the Regulation: [86] –[88] [130] [131] .

II. Judicial Review of Minister’s Opinion
6. There is no evidence, in the Briefing Note or otherwise, to support the contention that the Minister’s Opinion was formed for the improper, collateral purpose of effectuating an existing appeal in the LEC: [96], [101] –[102] [110]–[113] [130] [131] .

–[109]

.

Thompson v Council of the Municipality of Randwick

9. The absence of a reference in the Briefing Note to whether the development is “only of local environmental planning significance” does not mean that the Minister failed to have regard to this matter: [120] [122] [125] [127] [130] [131].

Orders
1 The appeal and first cross-appeal are allowed.

2 Set aside Order 3 of the orders made 28 April 2008.

(i) The opinion of the Minister as expressed in the “Record of Minister’s Opinion for the Purposes of Clause 6 of the State Environmental Planning Policy (State Significant Development) 2005”, made by the Minister and dated 3 May 2007, is valid in respect of development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005.

(ii) The Minister for Planning is the consent authority in respect of development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005.

Environmental Planning and Assessment Act

4 Set aside Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below.

5 In place of Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below, order that the first respondent pay the appellant’s costs of the proceedings below as agreed or assessed.

6 Grant leave to the first respondent to file the second cross-appeal.

7 The second cross-appeal is dismissed.

CA 40136/08

SPIGELMAN CJ
McCOLL JA
HANDLEY AJA

Thursday 18 June 2009

Austral Monsoon Industries Pty Ltd v Pittwater Council

Judgment

This is an appeal pursuant to s 58(1) of the Land and Environment Court Act 1979 from a decision of Lloyd J in Class 4 proceedings in the Land and Environment Court of New South Wales (“the LEC”). The orders made in those proceedings had the consequence of terminating related Class 1 proceedings. No party seeks to reinstate the latter proceedings.

Factual Background

2 On 10 June 2005, the appellant, Austral Monsoon Industries Pty Limited (“Austral”), lodged development application No DA-144-6-2005-i (“the Original DA”) with the second respondent (“the Minister”) seeking consent for the upgrade and expansion of the Careel Bay Marina in the Pittwater area of Sydney. Austral is the occupier and operator of the marina.

3 The Original DA comprised two parts, referred to in the Original DA as Stages 1 and 2.

4 The works proposed to be carried out in Stage 1 comprised:

(a) demolition or dismantling of existing structures, excluding fuel storage tanks;

(b) construction of boating repair and maintenance facilities including a shiplift, hardstand area and work berths;

(c) construction of a single storey building and a two storey building;

(d) construction of a timber wharf which would include fuelling, sewage pumpout and oily bilge pumpout facilities;

(e) installation of stormwater managements systems;

(f) car parking; and

5 The works proposed to be carried out in Stage 2 comprised:

(a) construction of a 37 berth floating marina including services to berths;

(b) relinquishing of 37 commercial swing moorings;

(c) a 27 metre wide navigational channel;

(d) provision of berthing for small craft; and

6 On 14 February 2006, the Minister purported to refuse the Original DA. Austral commenced Class 1 proceedings on 2 February 2007 against the refusal of consent by the Minister. The first respondent, Pittwater Council (“the Council”), opposed the development and became involved in the Class 1 proceedings.

7 On 1 May 2007, the Minister received a departmental Briefing Note recommending that he form the opinion that the development, the subject of the Original DA, was State significant development. The Note set out the statutory context and the course of decision-making. It stated that, because the requisite opinion had not been formed, the Council and not the Minister was the consent authority at the time of the Minister’s approval. It recommended that the Minister form the requisite opinion.

8 On 3 May 2007, the Minister signed a record stating his opinion which would have the consequence that the development, the subject of the Original DA, was State significant development for the purpose of s 76A(7)(a)(i) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) (“the Minister’s Opinion”).

9 The Minister’s Opinion was expressed as follows:

State Environmental Planning Policy (State Significant Development) 2005

Environmental Planning and Assessment Act 1979

Schedule

Careel Bay Marina Development, Environmental Impact Statement Volumes 1 and 2

partial demolition of the existing Careel Boat Service marina and construction of new marina buildings and structures; and

expansion of the marina to include 37 new floating berths to replace 37 existing swing moorings in Careel Bay.”

10 On 4 May 2007, the day after the Minister’s Opinion, the LEC with the consent of the Council and the Minister granted Austral leave to amend the DA (“the Amended DA”). The amendments included:

(a) a reduction in the number of floating marina berths to 24 so that the total number of berths included in the development became 31;

(b) a reduction in the size of the two buildings;

(c) a reduction in the size of the hardstand area;

(d) removal of the berthing for small craft;

(e) removal of five commercial moorings under the control of the Council and relocation of 20 private moorings not under the control of the Council from the seagrass area to the southern end of the bay;

(f) an increase in the number of permanent car spaces; and

11 On 11 September 2007, the Council received, for the first time, a copy of the Briefing Note prepared for the Minister. On 26 October 2007, the Council commenced Class 4 proceedings, seeking declarations that the determination made by the Minister on 14 February 2006 and the Minister’s Opinion of 3 May 2007 were invalid. The Council also claimed that, if the 14 February 2006 decision was not the decision of a consent authority and was invalid, s 97 of the EP&A Act did not authorise an appeal to the LEC and the Class 1 proceedings were incompetent.

Legislative Framework

12 From 1 July 1998 until it was repealed with effect from 1 August 2005, s 76A of the EP&A Act dealt with State significant development.

13 During this period, s 4(1) of the EP&A Act provided:

“In this Act, except in so far as the context or subject-matter otherwise indicates or requires: ...

State significant development

14 In particular, s 76A(3), (7), (8) and (9) provided:

Two types of development that need consent

Development that may not be carried out except with development consent comprises 2 types, namely:

(a) local development (which includes complying development), and

(b) State significant development.

…

State significant development

State significant development is:

(a) development:

(i) that is declared by a State environmental planning policy or a regional environmental plan to be State significant development, and

(ii) that may be carried out with development consent, or

(b) particular development, or a particular class of development:

(i) that, under an environmental planning instrument, may be carried out with development consent, and

(ii) that, in the opinion of the Minister, is of State or regional environmental planning significance, and

(iii) that is declared by the Minister, by notice in the Gazette, to be State significant development, or

(c) development that is proposed to be carried out in accordance with a development application that the Minister has directed, under section 88A, to be referred to the Minister for determination, or

(d) prohibited development in respect of which a direction by the Minister under section 89 is in force.

(8) If:

(a) a project comprises development part of which is State significant development, all other development comprised in the project is taken to be State significant development, and

(b) but for this provision, part of State significant development would be subject to Part 5, this Part applies to the exclusion of Part 5 and the development may be carried out with development consent, and

(c) but for this provision, part of State significant development would be prohibited, the development may be carried out with development consent.

(9) The Minister is the consent authority for State significant development.”

15 On 6 April 2001 by notice published in the New South Wales Government Gazette, the Minister for Urban Affairs and Planning made a declaration under s 76A(7) of the EP&A Act that marina development within the class set out in the schedule to that declaration was State significant development (“the Marina declaration”).

16 The schedule to the Marina declaration included marina development located in, relevantly, Broken Bay, that involved:

(a) the establishment of a new permanent boat storage facility on the waterway with support facilities on an adjoining area of land or waterway; or

17 On 10 June 2005, by notice published in the New South Wales Government Gazette, the Minister for Infrastructure and Planning revoked the declarations set out in the schedule to that notice, including the Marina declaration.

18 By publication in the New South Wales Government Gazette on 25 May 2005 the State Environmental Planning Policy (State Significant Development) 2005 (“the SEPP (SSD)”) was notified. Clause 6 of the SEPP (SSD) provided:

Identification of State significant development

Development that, in the opinion of the Minister, is development of a kind:

(a) described in Schedule 1 or 2, or

(b) described in Schedule 3 as State significant development,

is State significant development.”

19 Clause 14 of Sch 1 of the SEPP (SSD) provided:

Marina facilities

(1) Development for the purpose of marinas or other related land or water shoreline facilities that moor, berth or store vessels (excluding dinghies and other small craft) at fixed or floating berths, at freestanding moorings, alongside jetties or pontoons, within dry storage stacks or on cradles in hardstand areas and that:

(a) moor, berth or store more than 30 vessels in Sydney Harbour, Middle Harbour, North Harbour, Botany Bay, Port Hacking, Broken Bay or associated tidal waters, or

(b) moor, berth or store more than 80 vessels in other waters, or

(c) are located in environmentally sensitive areas of State significance,

but excluding any development that, in the opinion of the Minister, is only of local environmental planning significance.

(2) A reference in this clause to the number of vessels moored, berthed or stored includes a reference (in the case of an existing facility) to the additional number of vessels moored, berthed or stored at the facility.”

20 I note that it was an agreed fact in the proceedings that the total number of berths included in the development was 31 and that cl 14(1)(a) was satisfied. No issue arose under cl 14(2).

21 I note further that it was common ground that if the Minister formed the opinion required in cl 14(1) – that the development was “only of local environmental planning significance” – the relevant consent authority would be the Council. If that had occurred then, as a major part of the proposed development was prohibited under the Pittwater Local Environmental Plan 1993, it could not be approved.

22 Before the Minister purported to determine the Original DA for the Careel Bay Marina, the statutory scheme was changed, subject to transitional provisions, the effect of which is in issue.

23 On 16 June 2005, the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (“the 2005 Amending Act”) was assented to. The 2005 Amending Act introduced Pt 3A to the EP&A Act, entitled “Major Infrastructure and Other Projects”, and repealed provisions relating to State significant development, including s 76A(7) and (8).

24 On 1 August 2005, parts of the 2005 Amending Act, including Pt 3A and the repeal of s 76A(7) and (8), commenced. On the same day, an amendment to the SEPP (SSD) commenced, which renamed it State Environmental Planning Policy (Major Projects) 2005, and generally replaced references to State significant development with references to projects to which Pt 3A of the EP&A Act applies.

25 Transitional provisions concerning the 2005 Amending Act were inserted into Sch 6 of the EP&A Act and, relevantly, amended cl 1 and included cl 87 and cl 89:

1 Savings and transitional regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

…

Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.

(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

…

87 Savings and transitional regulations

Regulations made under Part 1 of this Schedule have effect despite anything to the contrary in this Part.

…

89 State significant development matters

(1) If a development application for State significant development is pending on the commencement of Part 3A of this Act, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to this Act by Schedule 1 to the 2005 Amending Act had not been made.

(2) A reference in any Act or instrument to State significant development within the meaning of this Act is taken to be a reference to a project to which Part 3A of this Act applies.”

26 Further transitional provisions were made by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005, published in the New South Wales Government Gazette on 29 July 2005 and commencing 1 August 2005. This regulation added cl 8J(5) to the Environmental Planning and Assessment Regulation 2000 (“the EP&A Regulation”) as follows:

Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act

2005

27 On 7 December 2005, the Environmental Planning and Assessment Amendment (Major Projects - Transitional Provisions) Regulation 2005, was gazetted and expressed to commence on the date of assent of the 2005 Amending Act, namely 16 June 2005. Schedule 1 added cl 8J(6), (7) and (8) to the EP&A Regulation:

State Environmental Planning Policy (State Significant Development) 2005

(7) If:

(a) a development application was made before the commencement of Part 3A of the Act on the basis that the development was State significant development, and

(b) the Minister is required to form an opinion that the development is State significant development in order to determine the application on that basis (but the Minister had not, before that commencement, formed an opinion on the matter),

Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act

2005

(8) A development consent in force immediately before the commencement of Part 3A of the Act may be modified under section 75W of the Act as if the consent were an approval under that Part, but only if:

State Environmental Planning Policy (Major Projects) 2005,

(b) the Minister approves of the development consent being treated as an approval for the purposes of section 75W of the Act.

The development consent, if so modified, does not become an approval under Part 3A of the Act.”

The Findings of Lloyd J

28 Justice Lloyd determined the issues in both the Class 1 and Class 4 proceedings in Pittwater Council v Minister for Planning [2008] NSWLEC 26 (“the first judgment”). His Honour dealt with matters arising from the first judgment and costs, and made consequential orders in Pittwater Council v Minister for Planning (No 2) [2008] NSWLEC 153 (“the second judgment”).

29 With respect to the validity of the Minister’s decision of 14 February 2006, his Honour found that there was no record that the Minister formed the requisite opinion required by cl 6 of the SEPP (SSD) when making his decision. (See the first judgment at [26].)

30 His Honour decided that s 76A(7)(a)(i) of the EP&A Act was not satisfied because the Minister had not at any time before 14 February 2006 formed the opinion referred to in cl 6 of the SEPP (SSD). (See first judgment at [28].)

31 His Honour concluded in the first judgment at [26]:

“The development the subject of the original DA was not, therefore, State significant development at the time that the Minister purported to determine it.”

32 Accordingly, Lloyd J concluded in the first judgment at [60(a)]:

EP&A Act

33 With respect to the validity of the Minister’s Opinion of 3 May 2007, his Honour found that the expressed opinion, to the effect that the proposed development was State significant, was an opinion based on the Original DA and did not relate to the Amended DA. (See the first judgment at [34] and [60(b)].) Accordingly, his Honour found that the Minister’s Opinion was of no effect as it related to the Original DA, not to the Amended DA. As a result of the failure to form the opinion in relation to the Amended DA, his Honour concluded the Minister was not the consent authority, the relevant consent authority was the Council. (See the first judgment at [33]-[34], [60].)

34 His Honour rejected the Council’s argument that the Minister failed to ask himself the correct question or, alternatively, failed to take account of a mandatory relevant consideration, namely whether he was of the opinion that the marina development in the Original DA was not “only of local environmental planning significance” pursuant to cl 14(1) of the SEPP (SSD).

35 His Honour held that a State significant development and a development of local environmental planning significance are mutually exclusive. As such his Honour concluded in the first judgment at [56]:

“if the proposed development is State significant development there is no need under cl 14 … for there to be an express statement by the Minister that it is not ‘only of local environmental planning significance’.”

36 The Council also contended that the Minister’s Opinion was made for an improper, collateral purpose, namely, to put the Court in a position to be empowered to consider the application in its entirety and on its merits. His Honour held there was no evidence to support this contention. (See the first judgment at [57].)

Issues on the Appeal

37 Justice Lloyd determined that the LEC did not have jurisdiction to entertain the Class 1 proceedings. There is no appeal in this respect. His Honour made orders setting aside the Minister’s purported decision of 14 February 2006. There is no appeal from these orders. I note that the Minister made submissions to the effect that the Class 1 appeal was competent. However, the Minister’s cross-appeal did not seek any orders based on that submission and it is unnecessary to consider the issue.

38 The appeal by Austral, and the cross-appeals by the Council and by the Minister, are concerned with his Honour’s order that the Minister’s Opinion of 3 May 2007 “is of no effect on the development application as amended” and with the present status of the development proposal in the planning process.

39 Austral wishes to press on with its application pursuant to the State significant development scheme prior to the 2005 amendments. It relies on the transitional provisions. The issues for this Court are whether it can do that and, if it can, whether the Minister or the Council is the consent authority.

40 Austral submits that the Minister was at all times, and remains, the consent authority. It relies on the decision of this Court in Minister for Planning v Gales Holdings Pty Ltd [2006] NSWCA 212; (2006) 146 LGERA 450. Austral contends that cl 8J(7) applies in accordance with its terms. The Original DA was lodged on 10 June 2005, before the new Pt 3A of the Act commenced on 1 August 2005. At that time, the Minister had not formed the opinion as to whether the development was State significant development. Austral contends that the Minister validly formed the opinion for the purposes of cl 8J(7) on 3 May 2007, and, therefore, the proposed development became State significant development. It also contends that the Original DA in the form lodged on 10 June 2005 remains on foot and can be determined by the Minister.

41 The Minister’s cross-appeal is to the same general effect as Austral’s appeal. She contests the findings of Lloyd J that the Original and/or the Amended DAs were not able to be determined by the Minister. She contends that the Council was not and is not the consent authority.

42 The Council contends that, as a matter of statutory interpretation, cl 8J(7) of the EP&A Regulation was not engaged. If that is correct, then the Minister is not the consent authority. The Council further contends that the application was withdrawn and, accordingly, cl 8J(7) no longer applied in accordance with the express reference to withdrawal contained therein. The effect of these two submissions are that it is the consent authority.

43 The Council’s cross-appeal raises the judicial review grounds rejected by Lloyd J: that the Minister asked himself the wrong question; that he failed to take into account a mandatory consideration; that the Minister’s Opinion of 3 May 2007 was formed for an improper, collateral purpose. It seeks orders that the Minister’s Opinion is invalid and should be set aside. If accepted, these submissions would have the consequence that the application remains before the Minister for the formation of the opinion, whereupon she would become the consent authority.

The Interpretation of cl 8J(7)

44 Upon the application of s 76(7)(a)(i) of the EP&A Act and cl 6 and cl 14 Sch 1 of the SEPP (SSD), s 76(9) of the EP&A Act states that the Minister is the consent authority for State significant development. In order for these provisions to apply, pursuant to the transitional provision in cl 8J(7), the Minister is “required” to form the “opinion” referred to “in order to determine” the development application made by Austral. The issue of interpretation that has arisen turns on the characterisation of the “opinion” and particularly on the meaning of the word “that”.

45 The clause “form an opinion that the development is State significant development” appears twice in cl 8J(7): first, in the pre-condition in par (b) and, secondly, in the operative part of the clause enabling the Minister to form the opinion. It must mean the same in both places. No separate analysis was suggested in submissions.

46 Mr N Hutley SC, who appeared for the Council, submitted that cl 8J(7)(b) does not engage cl 6 of the SEPP (SSD) because cl 6 does not involve the Minister forming an opinion of the particular character there referred to. The effect of cl 6 is that, if the Minister forms an opinion that one of the matters in the Schedule exists, relevantly the requirements of cl 14, then it is cl 6, by its own force, that has the effect of constituting the development as “State significant development”. However, what cl 8J(7)(b) requires is an “opinion that the development is State significant development”. This, he submits, is not the “opinion” for which cl 6 calls.

47 If the Council’s interpretation would deprive cl 8J(7) of all practical effect, it is an interpretation which the Court would not adopt unless the language was intractable. Mr Hutley SC could only refer to s 76A(7)(b)(ii) of the EP&A Act, set out at [14] above, as a statutory power which required the Minister to form an opinion of the stated character. Some other sections use the formulation “in the Minister’s opinion are of significance for State or regional environmental planning” (for example, s 88A and s 89), but it cannot be suggested that cl 8J(7) applies to them. Only s 76A(7)(b) is relevant in this regard.

48 The Council’s submission requires a strict literal interpretation of the words “opinion that the development is State significant development”. However, the only matter, other than cl 6 of the SEPP (SSD), to which the Council could point as falling within cl 8J(7) does not use that precise formulation with respect to the ministerial opinion. Section 76A(7)(b)(ii) refers to an opinion of the Minister that development “is of State or regional environmental planning significance”. The declaration that the Minister must publish in the Gazette uses the words “to be State significant development”, but the actual “opinion” is not expressed in those words.

49 More significantly, it does not appear to me that cl 8J(7) can apply to the process for determining that a proposal is State significant development for which s 76A(7)(b) provides. If that be right, then cl 8J(7) can only apply to proposals to which s 76A(7)(a) applies, relevantly, pursuant to the SEPP (SSD).

50 Accepting that the “opinion” for which s 76(7)(b)(ii) provides is an opinion of the same character as found (twice) in cl 8J(7), notwithstanding its different formulation, no provision is made in cl 8J(7) for the final necessary step of the process, that is, s 76A(7)(b)(iii) – “that is declared by the Minister, by notice in the Gazette, to be State significant development”.

51 In the absence of any such additional provision empowering the Minister to carry into effect his or her opinion by publishing the declaration, it does not appear to me that cl 8J(7) can apply to such a case.

52 On that basis, cl 8J(7) would have no work to do if it did not apply to applications which fell within s 76A(7)(a). Only the SEPP (SSD) was identified as falling within that subsection.

53 As is often the case, the broader context of the provision about which there is a dispute as to its meaning is of determinative significance in resolving its interpretation.

54 The statutory history is relevant. The original savings and transitional provision was cl 89 of Sch 6 of the EP&A Act set out at [25] above. It provides, in general terms, that the 2005 amendments would not apply to any “development application for State significant development” that was “pending” at the time those amendments commenced. However, as cl 87, also set out at [25] and inserted at the same time, makes clear, it was contemplated that additional regulations pursuant to the general savings and transitional provision in cl 1 of Sch 6 of the EP&A Act may need to be made.

55 The concept of when a ‘development application is pending’ is not a matter which can be answered with clarity. It could well have extended to encompass an application which required a decision that constituted the proposal as State significant development. In any event, it was not relied upon directly in the present proceedings. However, cl 8J does manifest, not least by the indeterminacy of the word “pending”, a legislative purpose that existing applications be dealt with under the regime extant at the time they were brought to the stage of a formal application.

56 Clause 8J(5), set out at [26], makes provision for a situation in which the Minister has published a notification under s 76A(7)(b)(iii) of the Act. However, further consideration required additional provisions. Subsequently subclauses (6), (7) and (8), set out at [27] above, were added.

57 Clause 8J(6) applies to any application which has already been identified as State significant development at the time that the SEPP (SSD) came into force. Clause 8J(7), inserted at the same time, is clearly intended to take up where subclause (6) left off, that is, with respect to matters that had not, as at the date of commencement of the SEPP (SSD), been determined to be a “State significant development”. In this context, in my opinion, subclause (7) must be understood as encompassing the SEPP (SSD). The Council’s interpretation would deny that effect.

58 Of further significance for the present case, in my opinion, is the purpose of the clause reflected in that part of pre-condition (a) of cl 8J(7) which refers to an application having been made “on the basis that the development was State significant development”.

59 Before the formation of the relevant opinion by the Minister, that “basis” was inchoate and the application to the Minister for consent was made in escrow, as it were, pending the formation of the constitutive opinion by the Minister. (See Gales Holdings supra at [38]-[40].)

60 The reference to the “basis” on which an application is made reflects the significant amount of time and expense which is involved in preparing an application of this character. This is clearly recognised in the respective transitional provisions that persons who have relied on the existing scheme, in the manner for which the respective provisions provide, should, as a matter of fairness, have their applications determined on the basis that the significant changes in the scheme introduced in 2005 would not apply to them.

61 Mr M Craig QC, who appeared for Austral, submitted that the formulation now under consideration should be interpreted as if it read “to form an opinion so that the development is State significant development”. It is, in my opinion, open for the Court to interpret the words in this manner. It should do so. The word “that” should be understood in a conjunctive sense – indicating a consequence – rather than in an adjectival sense – qualifying the “opinion”.

62 A directly analogous approach was taken in this Court in Gales Holdings supra at [50], where Hodgson JA rejected one submission on the basis that it would render cl 8J(7)(b) a futility.

63 His Honour then turned to another submission to the effect that the Minister had determined the basic facts and, accordingly, formulated the relevant “opinion”, notwithstanding the fact that he had proceeded on the basis of an inapplicable statutory regime. In this context, Hodgson JA, with whom Giles and Ipp JJA agreed, identified the following approach to the interpretation of the word “opinion” in cl 8J(7):

“[53] In my view, the ‘opinion’ referred to in cl 8J(7)(b) comprehends those opinions that are required for a valid determination, this meaning opinions that where necessary engage with the relevant statutory and regulatory framework so as to make the application one for State significant development …”

64 Justice Hodgson’s reference to “so as to” is the equivalent of the word “so” propounded in this Court by Mr Craig QC.

65 Justice Hodgson went on to say:

“[54] I accept that this interpretation does somewhat strain the words used in the clause. However, it does have support from cl 8J(6), which suggests that what cl 8J(7) is dealing with is applications for development which is not State significant development because of the absence of the required opinion. Further, in my opinion it is preferable because it does enable some effect to be given to the apparent purposes of the provision …”

66 The directly relevant word “that” is a word with a wide range of meanings. It is, as a matter of interpretation, capable of bearing the meaning “so that” or “with the effect that”. This is not a case in which a word has to be introduced into the statute. It is a case in which the true meaning of the words actually used by the draftsmen is best reflected in a formulation which includes an additional word or words. (See R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [6]-[12]; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [80]-[88].)

67 As Gleeson CJ said in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [10], the process of interpreting a provision as if it contained additional words must be undertaken “bearing in mind that what is involved is an exercise in construction, not legislation”.

68 In this case the threefold test for what Lord Diplock characterised as 'reading words into the Act' in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 is satisfied:

Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd

thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified

69 These tests were applied by McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113, 116 and Mills v Meeking (1989-1990) 169 CLR 214 at 243-244. See also Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422-423; Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 299-300; R v Firns [2001] NSWCCA 191; (2001) 51 NSWLR 548 at [66]-[67]; Ravenscroft v Nominal Defendant [2007] QCA 435; [2008] 2 Qd R 32.

70 The interpretation which reads the provision as if the word “so” had appeared before the word “that” is perfectly appropriate and reflects the purpose of the particular provision which must be interpreted and understood in the context in which it appears. The only reason why the Minister forms the opinion identified in the SEPP (SSD), relevantly in cl 14 of Sch 1, is so that the development proposal is thereby, albeit by force of cl 6, constituted “State significant development”.

71 The Council’s submissions in this respect should be rejected. The SEPP (SSD), in particular cl 6 and cl 14 of Sch 1, does answer the description of an “opinion” within cl 8J(7).

The Effect of the Amendments

72 As noted at [33] above, Lloyd J determined that the Minister’s Opinion of 3 May 2007 was of no effect because it was based upon the Original DA rather than on the Amended DA. Austral and the Minister contend that this involves a misinterpretation of cl 8J(7).

73 As set out at [27] above, the operative opinion in cl 8J(7) is expressed in the following terms: “that the development was, at the time the application was made, State significant development”. The italicised words are clearly a reference back to cl 8J(7)(a), which refer to a development application being “made before the commencement of Part 3A of the Act”.

74 As Hodgson JA said in Gales Holdings supra at [57]:

“In my opinion, cl 8J(7) discloses a clear intention to make the relevant date for determination whether the development in question was State significant development (and thus to determine whether the Minister was the consent authority) the date of the application; and it does not contemplate a further question as to whether the development was State significant development, to be addressed either as at the date of determination of the application or 31 July 2005. If the Minister forms the opinions required for a conclusion that the application was, at the time it was made, for State significant development, then the Minister is the consent authority; and there is no need to revisit the question as at any later date.”

75 The significance of the time at which the original application was made is confirmed by cl 8J(9) which states:

“For the purposes of this clause, and to avoid doubt, a development application is made by a person when the person first applies to the consent authority for consent to carry out the particular development, whether or not the application at that time had been consented to by the owner of the land to which the development application relates.”

76 In the present case, the relevant application, for purposes of formulating the Minister’s Opinion was the Original DA upon which the Minister in fact formed the opinion. Once that opinion was formed, cl 8J(7) could be given force and effect, so that the application was to be determined, “unless withdrawn by the applicant”, as if the 2005 amendments had not been made.

77 In my opinion, Lloyd J erred in determining that the Minister’s Opinion was of no effect. The Austral appeal and the Minister’s cross-appeal should be allowed in this respect.

The Withdrawal Issue

78 An issue has arisen as to whether or not the Original DA should be taken to have been withdrawn by the Amended DA for purposes of the phrase “unless withdrawn by the applicant” in cl 8J(7). This is not a matter determined by Lloyd J in terms. Austral contends that it is implicit in his Honour’s finding that the Minister’s Opinion of 3 May 2007 was of no effect. The Council contends that when his Honour said he accepted its submissions below, he extended that acceptance to its submission that the Original DA had, in substance, been withdrawn.

79 The Council contends that this finding should be either confirmed or, in the alternative, that this Court should hold that the changes subject of the Amended DA were such that it could not be considered to be “an amendment”.

80 Austral draws attention to the EP&A Regulation, being the regulations in which cl 8J(7) appear, which make provision for withdrawal and amendment.

81 Clause 52 of the EP&A Regulation has the heading “Withdrawal of development applications”. It relevantly provides:

“(1) A development application may be withdrawn at any time prior to its determination by service on the consent authority of a notice to that effect signed by the applicant.”

82 Clause 55 of the EP&A Regulation has the heading “What is the procedure for amending a development application?”. It relevantly provides:

“(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.”

83 This distinction between “withdrawal” and “amendment” is of long standing in an environmental planning context. Nevertheless, the Council contends that the word “withdrawn” is used in a different sense in cl 8J(7) than in cl 52, another provision in the same regulations which makes express provision for a withdrawal and which is in contrast to separate provision for an amendment.

84 The Council submits that “withdrawn” in cl 8J(7) should be understood to mean an indication that the proponent of the application no longer contends for its approval. This interpretation would introduce an inappropriate degree of rigidity into the transitional provisions.

85 I have discussed the purpose of cl 8J(7) above. Its purpose is to permit applications which have been prepared and submitted “on the basis”, which cl 8J(7)(a) expressly reflects, “that the development was State significant development”, to be processed in accordance with the scheme for planning approvals extant prior to the 2005 amendments.

86 An important aspect of the process of planning approvals is that an application may change, so as to adjust to contentions made in the course of the processes of consultation and of assessment. Those processes are a fundamental feature of the legislative scheme. The flexibility permitted by amendment of an original proposal is an important part of the planning process in this State. There is no reason to infer that the drafter of cl 8J(7) intended to remove this central element of the planning approval process by adopting a meaning of the word “withdrawn” so that changes, even significant changes, to a development application would not be permitted in the course of considering an application to which the transitional provisions apply. (Including cl 89, set out at [25] above.)

87 In my opinion, the word “withdrawn” in cl 8J(7) is a reference to the provisions in cl 52 of the same regulations. Furthermore, the differences between the Original DA and the Amended DA fall well within the concept of “amendment”. There is some reduction in scale, but there was not, in substance, a different development.

88 The amendments made in the context of ongoing Class 1 proceedings addressed matters on the basis of which the Minister had refused consent. They clearly fell within the purpose of cl 55 in the legislative scheme. Indeed, the order carrying the amendments into effect expressly referred to cl 55.

89 The Council’s submission should be rejected in this respect.

The Collateral Purpose Issue

90 The contention on the part of the Council that the Minister’s Opinion was formed for an improper, collateral purpose is based on the Briefing Note which indicated that the Minister had never formed the opinion under cl 6 of the SEPP (SSD). The Briefing Note recommended that the Minister form the cl 6 opinion.

91 The relevant passage is:

“As the application is currently under appeal in the Land and Environment Court, the Court assumes the role of the relevant consent authority. Currently, the consent authority is Pittwater Council.

If this situation continues, the Court will only be empowered to consider and determine the currently permissible components of the proposal (Stage 1). The Applicant has previously indicated that Stage 1 of the development in isolation is not economically viable and would not proceed without Stage 2.

State Environmental Planning Policy (State Significant Development) 2005

In summary, there are two options currently available to the Minister:

do not form the clause 6 opinion

State Environmental Planning Policy (State Significant Development) 2005.

form the clause 6 opinion

State Environmental Planning Policy (State Significant Development) 2005.

The assessment of the development application and purported determination by the Minister has proceeded as if the development were State Significant Development. In fact, at the time of lodgement, the proposal was State Significant Development.

State Environmental Planning Policy (State Significant Development) 2005.

By forming such an opinion, the Court will be empowered to consider the development proposal in its entirety and on its merits.”

92 The Council’s contention is that the purpose of the author of the Briefing Note was to effectuate the then existing appeal in the LEC. It was submitted that this was a collateral purpose. Clause 8J(7), it was submitted, requires the Minister to form the opinion for the purpose of the Minister, rather than the Court, determining the application.

93 The structure of the Briefing Note itself does not support this submission. The introductory words of the Briefing Note under the heading of “Purpose” are:

State Environmental Planning Policy (State Significant Development) 2005

94 The final recommendation is merely that the Minister “note the information in this Briefing Note” and then “form the opinion” that the proposal is “development of a kind” set out in cl 14 of Sch 1 of the SEPP (SSD).

95 The Council relies on the whole of the passage set out above, particularly on the references to the fact that “the Court would then be empowered to considered and determine … the proposal”.

96 Justice Lloyd was of the opinion that there was no evidence to support the improper, collateral purpose. I agree. The Briefing Note is not such evidence. The author of the Note canvasses the effect that the formation of the opinion may have upon the extant LEC proceedings. However, this analysis is that of the author of the Note.

97 Mr Hutley SC submitted that the Briefing Note was evidence of the Minister’s purpose because it was signed and thereby adopted by him. However, signature does not necessarily indicate “adoption” of the contents. All the Note itself suggests is that the Minister “note” its contents. The contents of a departmental memorandum of this character are not usually evidence of what was in the Minister’s mind, nor do they establish the Minister’s purpose.

98 Establishing the purpose of a decision-maker has always generated difficulty in applications for judicial review of administrative decisions where the decision-maker does not identify his or her reasoning process. That is why it was necessary to enact s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 25D of the Acts Interpretation Act 1901 (Cth). There are no equivalent provisions in this State.

99 However, there are judicial mechanisms for establishing the purpose of the actual decision-maker. In the present case, interrogatories could have been directed to the Minister with a view to eliciting the relevant evidence. Other powers of the court could be called in aid in order to establish the relevant facts.

100 I refer, for example, to Practice Note SC CL 3 which applies to proceedings in the Administrative Law List in the Supreme Court and which states:

Administrative Decisions Tribunal Act 1997 (NSW)

.

101 It is not, in my opinion, permissible to infer a Minister’s purpose from a Briefing Note of the character under consideration. The Minister, who had had a long course of dealing with this issue, did not, by accepting the ultimate recommendation, adopt the whole of the reasoning in the document. It was necessary to establish his purpose in some other way. That was not done.

102 In any event, I am not satisfied that the purpose which the Council contends is identified in the Briefing Note is, in fact, a collateral purpose.

103 Mr Hutley SC identified the purpose of the Minister’s opinion in the terms of cl 8J(7): an opinion is “required” to be formed by the Minister “in order to determine the application on that basis”, that is, that it was State significant development. It is noteworthy that this particular formulation appears in the pre-condition, cl 8J(7)(b), and does not appear in the operative part of cl 8J(7), which simply empowers the Minster to form the opinion that the development was of the character “at the time the application was made”. The final sentence then empowers the application to be “determined” in accordance with the pre-existing legislative scheme.

104 The thrust of the Briefing Note is that the Minister had, in fact, made that determination, by his earlier refusal of consent, although a pre-condition had not been satisfied for constituting the Minister himself as the consent authority. Nevertheless, the Briefing Note does not challenge the validity of the proceedings in the LEC and, in fact, states expressly that the LEC “assumes the role of the relevant consent authority”. It accepts that because of the provisions of the Pittwater Local Environmental Plan, the Court would only be empowered to approve Stage 1 of the proposed development. However, if the Minister formed the opinion, which the Briefing Note recommended he form, then the Court would be empowered to determine both Stage 1 and Stage 2.

105 In the circumstances in which the Minister had already refused consent to the whole of the development, in my opinion, it is not a collateral purpose to enable the Court exercising the powers of a consent authority with respect to Stage 1, to also exercise those powers with respect to Stage 2.

106 I note cl 2(a) of the SEPP (SSD) which identifies an objective of the Policy to be:

so as to provide a consistent and comprehensive assessment and decision making process for that development

107 This objective creates a context in which it is appropriate for the Minister to exercise a statutory power conferred by that instrument in order to create a coherent and streamlined approach to resolving a development application. By avoiding a situation where issues would be procedurally dislocated and determined on a basis that does not reflect the nature of the development application as a whole, the Minister’s Opinion evidences a proper purpose.

108 The Council relied on Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87 at 105-107 where the Court identified an actuating purpose test and overruled a decision by a local council to acquire land, beyond what was required for the construction of a road, for the purpose of profit-making on resale. Such a purpose was clearly beyond the purposes for which a power to compulsorily acquire land had been conferred. I do not regard the purpose on which the Council relies in this case as being of the same character. Conferring on the Court the capacity to deal with Stage 2 of the development proposal is closely related to its capacity to deal with Stage 1.

109 In view of the judgment of the Court on the jurisdictional issue, which is not challenged on this appeal, the assumption that the Court could exercise this jurisdiction has proven to be incorrect. Nevertheless, the purpose identified is not so foreign to the power being exercised as to constitute a collateral purpose in the particular circumstances of this case. The Minister’s “purpose” could be seen to be to determine the matter on the basis that it was State significant development, as he had assumed it was at the time he refused the application. He may have erred as to the identity of the consent authority at the time of the formulation of the ministerial opinion, but that does not make his purpose in forming that opinion collateral in the relevant sense.

110 Even if the Briefing Note did reflect the Minister’s mind, there is no clear inference that the purpose is that for which the Council contends. The stated purpose at the head of the document was, as I have noted, the precisely appropriate one of forming the opinion. That is the purpose identified, and which the Minister expressed in the document constituting the opinion, which I have set out at [9] above. The fact that the consequence of formulating that opinion may have been to enable the LEC to act in the particular manner, does not suggest that that was the actuating purpose of forming the opinion, as distinct from a consequence.

111 The Briefing Note is equivocal in this respect. It states “the effect of forming [the] opinion” to be that the proposal would become State significant development. It goes on to say: “The Court would then be empowered …”. Furthermore, the concluding words are “By forming such an opinion, the Court will be empowered”. This is language of consequence or of effect. It is not, or at least not clearly, language of purpose. The Briefing Note, even if reflecting the Minister’s purpose, is an inadequate basis for concluding that there was a collateral purpose.

112 Furthermore, there is no evidence to suggest that, even if the Minister had been told that he, rather than the Court, would be the consent authority upon the formation of the Minister’s Opinion, any different decision would have been made with respect to the making of the opinion. The purpose, as the Briefing Note itself stated, was the formation of opinion which would have the consequence, by force of cl 6, that the development proposal was State significant development. The further consequences of that decision were not established to be a purpose in the relevant sense. The fact, if it be a fact, that the Minister may have thought that the consequence of his decision would be that the jurisdiction of the Court would be extended, whereas it now appears that the consequence is that the Minister’s authority to decide is re-established, does not identify a collateral purpose of the relevant kind.

113 Even assuming that the Minister’s purpose can be identified on the basis of the Briefing Note alone, it is open, and in my opinion is the better view, that the “purpose” reflected in that Note is to enable the application made on the basis that it is State significant development to be determined on its merits. That is not, in my opinion, a collateral purpose in a context where the institution exercising the powers of a consent authority was believed to have authority to determine one part of a project, but not the other.

114 In the above analysis, I have distinguished between a purpose and a consequence. It may be that this case involved multiple purposes, although the evidence upon which such a conclusion could be based was not adduced. Such evidence is essential in order to apply an actuating purpose test to the relevant decision-making process.

115 The Minister’s Opinion, and the Briefing Note on which it was based, may have had multiple purposes, linked in a series, to use the analogy suggested by David M J Bennett QC in “The Ascertainment of Purpose when Bona Fides Are in Issue – Some Logical Problems” (1989) 12 Sydney Law Review 5. Purposes linked in a series are not readily able to be assessed for predominance or actuating effect. They build on one another in such a way that the absence of one undermines the whole. The question of actuating purpose is not readily answered. The ultimate characterisation of one of multiple purposes, in order to conclude that the decision-making process was invalid, requires an analysis of the kind identified in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. No such analysis was attempted in this case.

116 The Council’s submissions on the collateral purpose issue should be rejected.

The Mandatory Relevant Consideration Issue

117 Clause 14 of Sch 1 of the SEPP (SSD) excludes from the marina facilities capable of being characterised as “State significant development” “any development that, in the opinion of the Minister, is only of local environmental planning significance”. The Briefing Note makes no express reference to the issue of whether the proposed development could be regarded as of local significance only.

118 The Council contends that the inference is available that in the absence of any such reference, the Minister failed to have regard to this matter, which it was mandatory for him to address. Alternatively, the Council submits that he failed to ask the right question by not expressly addressing the part of cl 14 quoted in [19].

119 Justice Lloyd rejected the submission below on the basis that the terms “State significant development” and “local environmental planning significance” are “mutually exclusive, and a statement that development is of the former kind clearly excludes development of the latter kind”. (See the first judgment at [56].)

120 I would not decide this issue on precisely that basis. The Minister does not form an opinion, in terms, that a particular development is “State significant”. Under cl 6 of the SEPP (SSD), the Minister forms an opinion that a development answers a particular description. It is cl 6 that provides that, where such an opinion is formed, the development “is State significant development”.

121 However, as the passage from the Briefing Note set out at [91] above expressly stated, the effect of the Minister not forming the cl 6 opinion was said to be “[t]he application would remain as local development”. The Minister rejected that consequence. This does support the thrust of Justice Lloyd’s conclusion, although in a slightly different way.

122 Furthermore, for the reasons given above, the Briefing Note is not able to be deployed, without other evidence, to establish what were the matters to which the Minister had regard or failed to have regard or what was the question he addressed.

123 Absent any attempt by the Council to establish, in a direct manner, what it was that the Minister took into account, or what question he asked, reliance on the Briefing Note cannot be used in the manner for which the Council contended.

124 In any event, this is not a case in which the Minister had no other information than the Briefing Note. He had considered the proposed development in some detail, particularly in the process of deciding to refuse the application. The materials tendered in the proceedings contain a considerable amount of information to which the Minister had earlier had regard. This information was directly relevant to the issue of “local environmental planning significance”.

125 Indeed, the Briefing Note itself outlined the background to the decision-making process. It set out the scale of the development in both Stages 1 and 2 as proposed. It then proceeded to indicate the reasons for the earlier refusal by the Minister, which included a range of matters that clearly indicated the broader than local significance of the proposal including: inconsistency with State Environmental Policy No 55 – Remediation of Land; inconsistency with State Environmental Policy No 71 – Coastal Protection; inconsistency with the Government’s Coastal Policy and the existence of a significant risk that the development would increase the spread, and hinder the effective management and removal of, a particular noxious aquatic weed. There are a number of matters which could be identified as of local environmental planning significance. Nevertheless, the contents of the Briefing Note itself suggest broader considerations were taken into account.

126 Mr N Williams SC, who appeared for the Minister, drew the Court’s attention to correspondence from the Council to the Director General, Department of Planning, in December 2005, which expressly accepted that: “The proposed development is caught by cl 14 of Schedule 1”. As he submitted, this was an indication that not even the Council contended that this was an appropriate case for the Minister to form the opinion that the development was “only of local environmental planning significance”.

127 It does appear that, in view of the prior history, the author of the Briefing Note did not consider this to be a relevant option by that stage. That, rather than oversight, explains why there was no reference to the matter in the report. It also explains why the Minister did not need to have his attention drawn to the issue, or to further consider the issue, at the time he formed the Minister’s Opinion. That question had long since been resolved.

128 The Council’s submissions in this respect should be rejected.

Orders

129 The orders I propose are:

1 The appeal and first cross-appeal are allowed.

2 Set aside Order 3 of the orders made 28 April 2008.

(i) The opinion of the Minister as expressed in the “Record of Minister’s Opinion for the Purposes of Clause 6 of the State Environmental Planning Policy (State Significant Development) 2005”, made by the Minister and dated 3 May 2007, is valid in respect of development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005.

(ii) The Minister for Planning is the consent authority in respect of development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005.

Environmental Planning and Assessment Act

4 Set aside Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below.

5 In place of Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below, order that the first respondent pay the appellant’s costs of the proceedings below as agreed or assessed.

6 Grant leave to the first respondent to file the second cross-appeal.

7 The second cross-appeal is dismissed.

130 McCOLL JA: I agree with Spigelman CJ.

I agree with Spigelman CJ.

**********

03/12/2009 - [118] cross-reference should be changed from [122] to [19][121] Briefing note set out at [91] not [96][68] single quotation marks around 'reading words into the Act' - Paragraph(s) 118, 121, 68

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Citations

Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154

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Cited Sections

CITATION:	Austral Monsoon Industries Pty Limited v Pittwater Council [2009] NSWCA 154 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	25 March 2009
JUDGMENT DATE:	18 June 2009
JUDGMENT OF:	Spigelman CJ at 1; McColl JA at 130; Handley AJA at 131
DECISION:	1 The appeal and first cross-appeal are allowed. 2 Set aside Order 3 of the orders made 28 April 2008. 3 In place of Order 3 of the orders made on 28 April 2008, declare that: (i) The opinion of the Minister as expressed in the “Record of Minister’s Opinion for the Purposes of Clause 6 of the State Environmental Planning Policy (State Significant Development) 2005”, made by the Minister and dated 3 May 2007, is valid in respect of development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005. (ii) The Minister for Planning is the consent authority in respect of development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005. (iii) Development application No DA-144-6-2005-i lodged with the Minister on 10 June 2005 remains a development application lodged pursuant to the Environmental Planning and Assessment Act 1979 in the form lodged at that time and is able to be determined by the Minister in accordance with the provisions of that Act. 4 Set aside Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below. 5 In place of Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below, order that the first respondent pay the appellant’s costs of the proceedings below as agreed or assessed. 6 Grant leave to the first respondent to file the second cross-appeal. 7 The second cross-appeal is dismissed. 8 The first respondent pay the appellant’s and the second respondent’s costs of these proceedings.
CATCHWORDS:	ADMINISTRATIVE LAW – judicial review – improper purpose – irrelevant consideration – Minister’s opinion – briefing note – establishing purpose of decision-maker – whether Minister’s opinion formed for improper, collateral purpose – consequences of Minister’s opinion – whether briefing note evidence of improper purpose – whether Minister failed to ask himself correct question or failed to take account of mandatory relevant consideration – whether Minister considered whether development “only of local environmental planning significance” – State Environmental Planning Policy (State Significant Development) 2005 (NSW), cl 6, Sch 1, cl 14 - ENVIRONMENT AND PLANNING – State significant development – nature of Minister’s opinion – marina – validity of Minister’s opinion that development State significant – application of repealed legislative scheme to development pending – basis on which application made – whether Minister or council consent authority – whether Minister’s opinion applies to development application as amended – whether original development application withdrawn or amended – Environmental Planning and Assessment Act 1979 (NSW), s 76(7) – Environmental Planning and Assessment Regulation 2000 (NSW), cl 8J – State Environmental Planning Policy (State Significant Development) 2005 (NSW), cl 6, cl 52, cl 55, Sch 1, cl 14 - STATUTORY INTERPRETATION – transitional provisions – purposive approach – reading words in Act – legislative history – futility – application of repealed State significant development scheme to development pending – “opinion that development is State significant development” – where term/phrase appears several times in provision – Environmental Planning and Assessment Act 1979 (NSW), s 76(7), Sch 6 – Environmental Planning and Assessment Regulation 2000 (NSW), cl 8J(7) - WORDS AND PHRASES – “opinion” – “that”
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005 Environmental Planning and Assessment Amendment (Major Projects – Transitional Provisions) Regulation 2005 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Pittwater Local Environmental Plan 1993 State Environmental Planning Policy (Major Projects) 2005 State Environmental Planning Policy (State Significant Development) 2005 State Environmental Policy No 55 – Remediation of Land State Environmental Policy No 71 – Coastal Protection
CASES CITED:	Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Mills v Meeking (1989–1990) 169 CLR 214 Minister for Planning v Gales Holdings Pty Ltd [2006] NSWCA 212; (2006) 146 LGERA 450 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Firns [2001] NSWCCA 191; (2001) 51 NSWLR 548 R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 Ravenscroft v Nominal Defendant [2007] QCA 435; [2008] 2 Qd R 32 Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87 Wentworth Securities Ltd v Jones [1980] AC 74
PARTIES:	Austral Monsoon Industries Pty Limited (Appellant) Pittwater Council (First Respondent) Minister for Planning (Second Respondent)
FILE NUMBER(S):	CA 40136/08
COUNSEL:	M G Craig QC, M Staunton (Appellant) N Hutley SC, R Lancaster (First Respondent) N J Williams SC, S A Duggan (Second Respondent)
SOLICITORS:	Wilshire Webb Staunton Beattie (Appellant) Mallesons Stephen Jaques (First Respondent) Minister for Planning (Second Respondent)
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 41079/07; LEC 10076/07
LOWER COURT JUDICIAL OFFICER:	Lloyd J
LOWER COURT DATE OF DECISION:	22 January 2008; 28 April 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Pittwater Council v Minister for Planning [2008] NSWLEC 26; Pittwater Council v Minister for Planning (No 2) [2008] NSWLEC 153