Batson Sand & Gravel Pty Ltd v Helman

[1996] HCATrans 46

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S109 of 1995

B e t w e e n -

BATSON SAND AND GRAVEL PTY LIMITED

Applicant

and

PETER HELMAN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 MARCH 1996, AT 12.13 PM

Copyright in the High Court of Australia

MR N.A. HEMMINGS, QC:   May it please the Court, I appear for the applicant.  (instructed by Allen Allen & Hemsley)

MR T.S. HALE:   If the Court pleases, I appear for the respondent.  (instructed by Dunhill Madden Butler)

MR HEMMINGS:   Your Honours, the application for leave is not merely a question of the interpretation of a planning statute or the application of the provisions of that statute, but what it goes to is principles as to whether non‑compliance with conditions precedent to the exercise of a discretion necessarily means that the application itself is void or the Court is bound to refuse consent.

The reason why we say it is a matter for which special leave should be granted is because the Court of Appeal, believing what it understands to be the gravamen of the decision of the High Court in Scurr’s Case, that the court was bound to refuse development consent if the notification was defective.

If it is not necessary for me to go to the facts of the case, your Honours, it really distils down to this point:  when an application is made for developer consent to extend a quarry, one needs to file an Environmental Impact Statement.  That Environmental Impact Statement has to be in accordance with the regulations which require full and comprehensive assessment of a large number of matters, including the impact upon flora and fauna.

This Act was amended so that if there was any likelihood that some significant fauna were impacted, the document, which is the EIS, has to be accompanied by a separate document called a Fauna Study.            Now, what happened in this case was that an application was made, in the prescribed form, for a designated development and an EIS was submitted which covered endangered fauna in accordance with the Act as it then stood.  But the Act provided that if the Environmental Impact Statement did not cover all of the matters that had to be addressed in a Fauna Study, a separate document had to be prepared and the process of exhibition revealed that.  People said, “Well, you have exhibited an EIS - it is not adequate - there should be more information and therefore a separate document should be provided”.

TOOHEY J:   It is not just a matter of filing a separate document, is it, Mr Hemmings?  The additional statement gives rise to the need to file a separate document to advertise, to give persons who may wish to be heard in relation to matters relating to fauna, the opportunity to object.

MR HEMMINGS:   That is what the Court of Appeal found, your Honour.  But the Court of Appeal never addressed its mind the way her Honour did as to whether the document that was in fact exhibited gave almost everything a person had to know.

BRENNAN CJ:   Almost?

MR HEMMINGS:   Yes, your Honour, and that is the important point - almost.  We say there was substantial compliance.

McHUGH J:   But it is not the important point, because it was not exhibited for the specified period.

MR HEMMINGS:   It was exhibited for the specified period your Honour. 

McHUGH J:   The EIS certainly did not comply.  Are you contending that the EIS complied?

MR HEMMINGS:   Yes.

McHUGH J:   Well, for a start six out of 13 fauna were not even referred to, were they?

MR HEMMINGS:   But by the time the assessment was done, I think most of them were found not to be relevant.  It came down to two.  The point was, your Honour, that her Honour went through the document that in fact was exhibited and found that no person would have been prejudiced.  She could not think of any person who might have wanted to object would object.

BRENNAN CJ:   We are not going to grant you special leave to consider that point.

MR HEMMINGS:   No, your Honour.

BRENNAN CJ:   What is the point that you say we should grant special leave on?

MR HEMMINGS:   Thank you, your Honour.  My point is this, that if a document has been exhibited ‑ ‑ ‑

BRENNAN CJ:   That is the EIS?

MR HEMMINGS:   The EIS, with a Fauna Survey, which then met the requirements of the Act so far as an Environmental Impact Statement was concerned, and all the documents that accompany the application ‑ ‑ ‑

TOOHEY J:   You really have to take it one step further, do you not?  You cannot just say “which met all the requirements of an Environmental Impact Statement, and which also met the requirements of the Fauna Statement”.

MR HEMMINGS:   But see, your Honour, a caution of fact had to be determined as to whether or not the document that, in fact, was exhibited met the requirements of section 92D, and it was not until it was exhibited that that was found.

BRENNAN CJ:   Well - - -?

MR HEMMINGS:   Well, that is my point your Honour.  This is the whole process ‑ ‑ ‑

McHUGH J:   Are you saying that until the failure to comply with the Act is discovered after the time for exhibition has commenced, the Act does not have to be complied with?

MR HEMMINGS:   But the Act was complied with.  The Act says ‑ ‑ ‑

McHUGH J:   Which Act?

MR HEMMINGS:   The Environmental Planning and Assessment Act.  It said, “The application and the documents accompanying it have to be exhibited.”  They were exhibited.  Someone said, “Look, you have not provided everything that you need.”  Her Honour found, as a matter of law ‑ and, in my submission, her finding is impeccable - that so far as sections 84 and 86 are concerned, it said, “You must exhibit the application and the documents accompanying the application”. That was done.

McHUGH J:   What does section 77(3)(d1) require?

MR HEMMINGS:   Section 77(3)(d1) must be read in conjunction with section 92D(4).  And 92D(4) says that when you file an EIS, if it addresses all of the matters required by this section, you do not need a separate document.  And so it did comply.

BRENNAN CJ:   Why do you say it complied if it was held that it did not?

MR HEMMINGS:   But, your Honour, there is no such thing as a perfect EIS.

McHUGH J:   Maybe so. There is such a thing as a complying EIS.  Was there, or was there not, a complying EIS in the sense that 77(3)(d1) was also satisfied?

MR HEMMINGS:   (d1)?  At the time of the application exhibition, the document, the accompanying application was exhibited.  It is a question of degree, in my submission, and that is what ‑ ‑ ‑ -

BRENNAN CJ:   No, it is not, it is a question of law, surely.

MR HEMMINGS:   No, with due respect, it must ‑ ‑ ‑

BRENNAN CJ:    It must comply, or not comply.

MR HEMMINGS:   Can I reply, your Honour? 

BRENNAN CJ:   Yes.

MR HEMMINGS:   It may be that they might have left one thing out - one small item - so therefore it does not comply.  So there must be a discretion.  There must be a decision to be made as to whether there has been substantial compliance, and Her Honour found that there had been.

McHUGH J:   But for reasons which the Court of Appeal said were erroneous.

MR HEMMINGS:   No, the Court of Appeal did not address that, at all, and that is my second point.  Their Honours said that she only addressed the question as to whether or not, by the time the decision was made in May, that there was an FIS and therefore that was inadequate.  The Court of Appeal never addressed the question as to whether Her Honour’s exhaustive examination of the sufficiency of the information in the exhibited documents was substantial compliance.  The Court of Appeal ‑ ‑ ‑

TOOHEY J:   But substantial compliance with what, Mr Hemmings?  This is what I am having difficulty with.  The Act, as I understand it, requires an Environmental Impact Statement and a Fauna Impact Statement.  Now, is it your argument that both those ‑ ‑ ‑

MR HEMMINGS:   The Act does not require that, your Honour.

TOOHEY J:   Does it not?

MR HEMMINGS:   When you read 92D together with - I have copies of 92D ‑ ‑ ‑

TOOHEY J:   I was taking that from the judgment of Mr Justice Handley.

MR HEMMINGS:   What the Act requires is that the development application has with it an accompanying FIS to comply with section 92D.  When you go to section 92D, it says you do not need a separate FIS if the EIS addresses the matters.

TOOHEY J:   Can we have a look at 92D.

MR HEMMINGS:   Yes, your Honour, 92D(4).  It is also in the application book, page 13, line 10.What I am saying, but probably in a very bad way, is that the requirements of section 84 and 86 - all of the documents accompanying the application have to be exhibited and the exhibition process means the public can come along and say, “Hang on, yes you have got an EIS but in our opinion, of the 100 matters you should have, you have only got 99 of them.  So therefore you have not complied with that so you need a separate FIS.”  So that the exhibition process requires that.

Her Honour found there had been substantial compliance and the Court of Appeal never addressed that point.

McHUGH J:   First of all, the EIS referred to the October survey and Her Honour found that it was defective in the sense that ‑ ‑ ‑

MR HEMMINGS:   It was not complete to comply with the full description of an FIS.

McHUGH J:   Correct.  Now, Her Honour found, nevertheless, there was substantial compliance for reasons, one might call, internal to the document itself, but is not the Court of Appeal’s point that the document that goes out to the world - sorry, must be available for inspection?

MR HEMMINGS:   No, your Honour.  What she found was - if you go to the application book, first of all to page 16, the first main paragraph at about line 12:

The issue for determination may then be stated in another way - did the failure to exhibit the FIS preclude the involvement and participation of the public in the assessment of the development application in conformity with the purpose of the relevant sections?  The involvement and participation of the public might be negated if there was no opportunity for the public to become aware of the potential impact of the proposed development on endangered species.  In my opinion, that was not the case here.  What was exhibited was the EIS and the October survey.  Both documents detailed the quarrying operations which were proposed, the habitats which were intended to be cleared, the potential impact on fauna species, and the proposals for mitigating that impact.  It is true that the information was not complete and a more comprehensive examination of the species which might potentially be affected and the possible impact upon them was made in the FIS.  But that did not mean that the potential fauna impact problems were unable to be perceived.

Then over on the next page she states what she believes is the test, at page 17, first main paragraph:

My conclusion as to the scope and purpose of ss 84, 86 and 87 of the EP&A Act puts out of contention the technical argument that the reference to documents “accompanying” the development application in s 86 and reg 37 of the regulations means the documents referred to in s 77(c)(d) and (d1), so that if any one of those documents is not on exhibition, the requirements of s 84 and reg 37 have not been complied with.  That argument relies on form over substance.  What ss 84, 86 and 87 require is that the public be alerted to the impacts of the proposed development, and so long as the development application and the documents which did in fact accompany it are adequate for that purpose and are on exhibition, the object of those provisions is met.

Your Honour, might I say if Her Honour is wrong here, as the Court of Appeal has said, the interpretation given to this sort of provision by the Land and Environment Court for years, has been wrong.  Every time there is a merit appeal and it involves an FIS or an EIS, the courts are met with a challenge to the validity of the application and the exhibition and so forth if there was some deficiency.  And what the Land and Environment Court does is - and Leech’s Case is one of the cases I can refer your Honours to ‑ says, “Well, let us have a look at this so-called deficiency in the EIS.  Let us have a look at the so-called deficiency in the FIS.   Is it real?  Is anybody affected by it and, if so, we will tell the Council to re-exhibit.  If not, well let us get on with it and deal with the matter.”

There are cases in the Land and Environment Court where the judges have said, “Well, we are not going to re-exhibit anything at all, because when you look at the compliance, when you look at the real effect, there is substantial compliance and that is adequate.”  The Court of Appeal did not address that point. 

With due respect, I think the error is this:  the Court of Appeal thought that the only real document that could be called an FIS was the sole document produced in May.  But the FIS that Her Honour considered was the October survey, which was part of the EIS, and the various other reports, and the totality of those documents comprised finally, in May, what was the FIS.  Your Honour, what I am trying to say is that there should be, and there has to be a test of substantial compliance with the documents that were, in fact, exhibited.

The Land and Environment Court is a statutory court, it being given all of the jurisdiction of the Supreme Court to make judicial decisions in relation to declarations of right, determination of validity and the like, so that it has more than the normal powers of an administrative tribunal to determine whether or not what is before it is lawful or not or what its powers are.

So the Land and Environment Court has jurisdiction in class 4 and class 1.  These proceedings were in class 1 and it is my submission that had the usual course been taken, and that is the court said to an applicant raising a point like this, “Well, if you take our proceedings in class 4 and they will be ranked concurrently with these proceedings and then you will have your rights preserved and the respondent will have those rights preserved, which are vested in the different divisions of the court.”

That was not done in this case, the consequence being that we do not have, or Her Honour does not have, the usual discretion that she would have under class 4 or, put another way, had class 4 proceedings been separately instituted, she would have been able to say, “Well, here we are after weeks of hearing, having heard eight experts and eight fauna reports, and in any event what I am going to do in this case, by condition 53 that you have seen in this judgment, is isolate the areas that might be affected by flora and fauna and require that it cannot be developed anyhow until licences are obtained.”  So therefore, she should have had all of the discretions that a judge would have had to say, “In my opinion, yes, there has been a breach.  It is not a question of substantial compliance but, in my opinion, there has been a breach.  Is it not such that I would declare the application invalid and that I have a discretion to proceed with the application?”  So that is my second point.

In relation to both, so far as Scurr’s Case is concerned, it requires a determination of this Court because as Mr Justice Menzies said in Scurr’s Case, it was a question for the Court as to whether the notification was adequate - whether the particulars were adequate.  And, in my submission, Mr Justice Menzies’ summary of Mr Justice Stephen’s judgment is correct and he was saying - and so Mr Justice Gibbs - that we think the public were deceived.  We think they were told it was a shop and it was really a shopping centre and therefore it was not adequate.  So in those circumstances it should be set aside.

But Scurr’s Case is applied in some courts and I submit by the Court of Appeal that if there is any breach it means, not that you cannot determine the application, but you are bound to refuse it and it requires a decision of this Court to put it back on the rails, with due respect.  The court must have that discretion.

BRENNAN CJ:   Yes, thank you, Mr Hemmings.We need not call on you, Mr Hale. 

This case involves no more than the construction of the provisions of the Environmental Planning and Assessment Act 1979 (NSW) and its application to the facts of this case. The decision of the Court of Appeal in applying the decision of this Court in Scurr v Brisbane City Council (1973) 173 CLR 242 does not give rise to any question of general principle which would attract a grant of special leave. Nor is there any reason to doubt the correctness of the view taken by the Court of Appeal as to the jurisdiction of the Land and Environment Court in Class 1 proceedings. Accordingly special leave is refused.

MR HALE:   I make an application for costs.

BRENNAN CJ:   Special leave will be refused with costs.

AT 12.34 PM THE MATTER WAS CONCLUDED