Bay Simmer Investments Pty Ltd v The State of New South Wales

[2016] NSWLEC 123

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Bay Simmer Investments Pty Ltd v The State of New South Wales [2016] NSWLEC 123
Hearing dates:	29-30 August 2016
Date of orders:	21 September 2016
Decision date:	21 September 2016
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1)   The Applicant’s Amended Summons is dismissed. (2)   The Applicant is to pay the First Respondent’s costs as agreed or assessed unless a Notice of Motion seeking other orders is filed by any party within 14 days of this judgment. (3)   The exhibits are to be returned.
Catchwords:	JUDICIAL REVIEW – challenge to approval of concept plan for Walsh Bay Arts Precinct because construction impacts not considered by Minister’s delegate – statutory construction of staged state significant development provisions in the Environmental Planning and Assessment Act 1979 – no failure to consider a mandatory relevant consideration – approval not unreasonable
Legislation Cited:	Civil Procedure Act 2005, s 98 Environmental Planning and Assessment Act 1979, ss 4, 75M, 75O, 78A, 79C, 80, 81A, 83A, 83B, 89C, 89D, 89E, 89F, 89G, 89H, 89L, 90, 91AA, 115ZD Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 Environmental Planning and Assessment Amendment (Infrastructure and other Planning Reform) Bill 2005 Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 Environmental Planning and Assessment Regulation 2000, cll 50, 70A, 256KA, Sch 1, Pt 1 National Health and Medical Research Council Act 1992 (Cth), s 12 Uniform Civil Procedure Rules 2005, r 42.1 State Environmental Planning Policy (State and Regional Development) 2011
Cases Cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 Haughton v Minister for Planning (2011) 185 LGERA 373; [2011] NSWLEC 217 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 Minster for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 S J Connelly v Ballina Shire Council (2010) 175 LGERA 408; [2010] NSWLEC 151 Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 Walker v Minister for Planning (2007) 157 LGERA 124; [2007] NSWLEC 741 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Category:	Principal judgment
Parties:	Bay Simmer Investments Pty Ltd (Applicant) The State of New South Wales (First Respondent) Minister for Planning (Second Respondent) (submitting appearance)
Representation:	COUNSEL: T Robertson SC and J Walker (Applicant) A Pickles SC and L Waterson (First Respondent)   SOLICITORS: Clinch Long Woodbridge Pty Ltd (Applicant) Crown Solicitor’s Office (Respondents)
File Number(s):	16/00154300

Judgment

1. The Applicant runs a business at Walsh Bay Sydney. The State of New South Wales (First Respondent) through its entity Arts NSW has obtained development consent for a concept plan for the Walsh Bay Arts Precinct (WBAP). The WBAP is state significant development (SSD) as provided in State Environmental Planning Policy (State and Regional Development) 2011. These are judicial review proceedings challenging the grant of development consent under s 89E of the Environmental Planning and Assessment Act1979 (NSW) (the EPA Act) by the delegate of the Second Respondent the Minister for Planning (the Minister) alleging failures in the approval process. The decision to grant consent was made by the Minister’s delegate (the delegate) on 21 May 2015. The Minister filed a submitting appearance.

2. The concept proposal approved by the delegate was described in the development consent (the Consent) as “staged development (concept proposal) for the Walsh Bay Arts Precinct comprising and [sic] integrated performing arts and cultural precinct including: a new waterfront public square between Pier 2/3 and Wharf 4/5, with a stage and shade structure; the adaptive reuse of Pier 2/3; the refurbishment of Wharf 4/5; and the use of the precinct for arts festivals, events and pop-up and associated uses.”

3. The four grounds of review identified by the Applicant’s Amended Summons are a failure by the delegate to consider a mandatory relevant matter under s 79C(1)(b), a failure by the delegate to consider a mandatory relevant matter under s 79C(1)(d), a failure of the delegate to make enquiries and that the delegate’s decision to approve was unreasonable in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1). The factual matter at the core of all the grounds was the decision of the delegate not to assess and consider construction impacts of building the WBAP, such as noise, vibration and traffic generated by construction vehicles when the concept proposal was approved.

Environmental Planning and Assessment Act 1979

4. The following provisions of the EPA Act are relevant:

4 Definitions

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

development means:

(a)   the use of land, and

(b)   the subdivision of land, and

(c)   the erection of a building, and

(d)   the carrying out of a work, and

(e)   the demolition of a building or work, and

(f)   any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

…

Part 4 Development assessment

…

Division 2 The procedures for development that needs consent

…

78A Application

(1)   A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

(2)   A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)–(f) of the definition of development in section 4 (1).

…

(8A)   A development application for State significant development is to be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations.

(9)   The regulations may specify other things that are required to be submitted with a development application.

79C Evaluation

(1)   Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a)   the provisions of:

(i)   any environmental planning instrument, and

…

that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)   the suitability of the site for the development,

(d)   any submissions made in accordance with this Act or the regulations,

(e)   the public interest.

…

80 Determination

(1)   General

A consent authority is to determine a development application by:

(a)   granting consent to the application, either unconditionally or subject to conditions, or

(b)   refusing consent to the application.

…

(3)   “Deferred commencement” consent

A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

(4)   Total or partial consent

A development consent may be granted:

(a)   for the development for which the consent is sought, or

(b)   for that development, except for a specified part or aspect of that development, or

(c)   for a specified part or aspect of that development.

(5)   The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.

…

Division 2A Special procedures concerning staged development applications

83A Application of this Division

This Division applies to staged development applications and to consents granted on the determination of those applications.

83B Staged development applications

(1)   For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.

(2)   A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application.

(3)   If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:

(a)   consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b)   the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

(4)   The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3).

Division 4.1 State significant development

89C Development that is State significant development

(1)   For the purposes of this Act, State significant development is development that is declared under this section to be State significant development.

(2)   A State environmental planning policy may declare any development, or any class or description of development, to be State significant development.

(3) The Minister may, by order published in the Gazette, declare specified development on specified land to be State significant development, but only if the Minister has obtained and made publicly available advice from the Planning Assessment Commission about the State or regional planning significance of the development.

(4)   A State environmental planning policy that declares State significant development may extend the provisions of the policy relating to that development to State significant development declared under subsection (3).

89D Minister consent authority for State significant development

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

(2) If a staged development application is made under Division 2A in respect of State significant development:

(a)   the Minister may determine that a subsequent stage of the development is to be determined by the relevant council, and

(b)   that stage of the development ceases to be State significant development and that council becomes the consent authority for that stage of the development instead of the Minister.

89E Consent for State significant development

(1) The Minister is to determine a development application in respect of State significant development by:

(a)   granting consent to the application with such modifications of the proposed development or on such conditions as the Minister may determine, or

(b)   refusing consent to the application.

…

89F   Public participation

(1)   As soon as practicable after a development application is made for consent to carry out State significant development, the Secretary must:

(a)   place the application and any accompanying information on public exhibition for a period (of not less than 30 days) prescribed by the regulations (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (b), and

(b)   cause notice of the application to be given and published in accordance with the regulations.

(2)   During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them.

(3)   During the submission period, any person may make written submissions to the Minister with respect to the development application. A submission by way of objection must set out the grounds of the objection.

…

89G Regulations—State significant development

In addition to any other matters for or with respect to which regulations may be made under this Part, the regulations may make provision for or with respect to the procedures and other matters concerning State significant development, including the following:

(a)   the environmental impact statements to accompany development applications in respect of State significant development,

89H Evaluation of development application (s 79C)

Section 79C applies, subject to this Division, to the determination of the development application.

…

89L This Division prevails

The provisions of this Division, the regulations under this Division and any other provisions of or made under this Act with respect to State significant development prevail to the extent of any inconsistency with any other provisions of or made under this Act relating to development to which this Part applies.

Environmental Planning and Assessment Regulation

5. The following clauses of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) are relevant:

50 How must a development application be made?

(1)   A development application:

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and

(b)   if the consent authority so requires, must be in the form approved by that authority, and

(c) must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority, and

(d)   must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission.

…

Division 3A Special provisions relating to staged development applications

70A Information to be included in staged development applications

Despite clause 50 (1) (a), the information required to be provided in a staged development application in respect of the various stages of the development may, with the approval of the consent authority, be deferred to a subsequent development application.

6. Division 2A, Pt 4 and Pt 3A were inserted into the EPA Act by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (NSW). Part 3A included a special regime for the grant of concept plan approval for major projects in s 75M. The assessment of Pt 3A projects was not subject to s 79C in Pt 4. Section 75M as in force immediately before the repeal of Pt 3A is extracted as follows:

75M Application for approval of concept plan for project

(1) The Minister may authorise or require the proponent to apply for approval of a concept plan for a project.

(2)   The application is to:

(a)   outline the scope of the project and any development options, and

(b)   set out any proposal for the staged implementation of the project, and

(c)   contain any other matter required by the Director-General.

A detailed description of the project is not required.

(3)   The application is to be lodged with the Director-General.

(3A) A single application may be made for approval of a concept plan for a project and for approval to carry out any part or aspect of the project. In that case, environmental assessment requirements, public consultation and reports under this Division and Division 2 with respect to the project may be combined.

(4)   If an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, the obligation may be satisfied for a project by an application for approval and approval of a concept plan in respect of the land concerned (but only if the Minister authorises or requires an application for approval of the concept plan).

7. Part 3A was repealed and Div 4.1 State significant development was inserted into Pt 4 on 1 October 2011 by the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (NSW). Division 2A was unamended.

Evidence

8. The Evidence Book in two volumes was tendered as Exhibit A subject to the relevance of three documents. The Court Book was tendered as Exhibit B. Exhibit A included the Request for Director-General's Environmental Assessment Requirements (D-G’s EARs) dated July 2013, the draft D-G's EARs and a letter from the New South Wales Environment Protection Authority (EPA) dated 28 August 2013 to the Department of Planning and Infrastructure (the Department) regarding the EPA's main concerns with the assessment of the WBAP proposal. An email from Ms Gibson of MG Planning Pty Ltd on behalf of Arts NSW to the Department was included which attached a marked up copy of the draft D-G's EARs. The D-G's EARs were issued on 2 September 2013.

9. Exhibit A also included the WBAP SSD application (SSDA) and the Environmental Impact Statement (EIS) both dated July 2014, and a quantity surveyor's report dated 10 June 2014. Several of the EIS appendices were included, being the concept design report, two approved concept design plans, the stakeholder engagement assessment report, the Building Code of Australia (BCA) assessment report, the phase 1 environmental site assessment, the heritage impact assessment, the noise and vibration assessment report, the maritime facilities report and the environmental sustainability report.

10. Also contained in Exhibit A was the submission made by Ms Kennedy the sole director of the Applicant dated 15 August 2014 in response to the SSDA, the response to that and other submissions prepared by Arts NSW, a summary of submissions from the public, the Public Domain concept design report and Ms Kennedy's response to the Arts NSW response to submissions dated 2 March 2015. The Secretary's environmental assessment report (Secretary's Report), the Consent issued by the Minister's delegate on 21 May 2015, the Secretary's Environmental Assessment Requirements for Stage 2 of the WBAP dated 1 July 2016 and the Interim Construction Noise Guideline published by the Department of Environment and Climate Change in 2009 were also included.

11. The Applicant read the affidavit of its sole director Ms Kennedy affirmed 15 April 2016. This was read subject to a relevance objection by the First Respondent. Ms Kennedy attested to the Applicant’s and its subsidiary’s use of premises at Wharf 2/3 Walsh Bay as a gallery/private dining room, a small café with outdoor seating and a kitchen which provides food service for the gallery, café and outside catering. The Applicant also has an entitlement to use an exclusive use area on the pier outside the building until 10:30pm Monday to Saturday and until 10:00pm Sundays and public holidays. Bookings for private functions are sometimes taken more than two years in advance. The affidavit also attests to Ms Kennedy’s communications with the relevant authorities regarding the WBAP and her belief that the noise generated during the construction period of the development will make it impossible for the Applicant to carry on its business.

The Assessment Process

12. There is no disagreement about the events comprising the assessment process for the WBAP SSDA. The process commenced with Arts NSW lodging a Request for D-G’s EARs in July 2013. The Department circulated Draft D-G’s EARs for comment to various government agencies in or around July/August 2013.

13. On 28 August 2013, the EPA made a written submission in response to the Draft D-G’s EARs. It raised concerns about “construction-related noise and vibration”. Under the heading “Construction Phase” it recommended that the proponent be required to “undertake a noise and vibration assessment of construction activities” and also to “address… dust management and control measures”.

12. On 29 August 2013, Ms Gibson of MG Planning Pty Ltd on behalf of Arts NSW sent an email to Mr Schofield of the Department which said:

It is important to clarify that this is a staged development application as provided for under Section 83D of the EP&A Act. Concept approval is being sought for the Walsh Bay Arts Precinct and not for any actual works. This SSD application for the Walsh Bay Arts Precinct concept will be followed by one or more SSD applications for the detailed design.

Construction issues would be dealt with at that stage. Clearly, it is not appropriate to address construction matters at the conceptual stage when the specific details or extent of works are not known….

The recommended changes to the draft DGRs are included in the attached version as tracked changes…

15. In the version of the Draft D-G’s EARs attached to that email, all references to construction related impacts were deleted. The final D-G’s EARs issued on 2 September 2013 adopted all of these changes.

16. The SSDA, accompanied by the EIS, was lodged on 1 July 2014. The SSDA stated that the proponent was applying for staged development. The WBAP was described in the SSDA as:

Stage 1 SSSDA for an integrated performing arts and cultural precinct together with an enhanced public domain at Wharf 4/5 and Pier 2/3, Walsh Bay.

17. The EIS described the development as follows:

•   The introduction of new public domain, comprising a public square between Pier 2/3 and Wharf 4/5 for multipurpose use as well as steps down to the waterway

•      A series of stairs and balconies designed as a contemporary interpretation of the original gantries reflecting the precinct’s former industrial heritage

•      The inclusion of flexible and adaptable spaces in Pier 2/3 and Wharf 4/5 for a large range of arts and cultural activities

•      Modification of the roof of Pier 2/3 to provide adequate acoustics for the Australian Chamber Orchestra auditorium.

•      Use of the precinct for arts festivals, events and pop ups as well as a range of activating uses such as restaurants, cafes and bars.

18. The EIS also stated at p 1:

This Stage 1 SSDA seeks “in principle” approval for the overall WBAP concept only. It will be followed by one or more detailed SSDAs for the construction of the public domain, building alterations and specific issues. The purpose of this concept SSDA is to provide an overview of the project and potential impacts across the precinct, and to establish a framework for the future detailed design, land use and construction works required to deliver the proposed WBAP project.

19. The EIS was placed on public exhibition from 17 July 2014 to 15 August 2014. During the exhibition period a submission was made by the EPA. The EPA expressed concern about construction related noise and vibration impacts, and construction related dust control and management. It recommended a “comprehensive noise and vibration assessment of construction activities”. An objection was lodged by Ms Kennedy the director of the Applicant on 15 August 2014. She objected to the fact that there was no assessment of construction noise in the EIS, and stated that noise impacts during construction would likely make it impossible for her to carry on the business of a function centre. Ms Kennedy expanded upon her objection in a further objection dated 2 March 2015.

20. In January 2015 after the close of submissions, the proponent lodged a Response to Submissions which acknowledged that construction impacts were raised by objectors. It stated that “as this application is for the WBAP concept… it is not possible at this stage to assess specific construction noise and vibration impacts”. Various additional reports and management plans were attached to the Response to Submissions.

21. The Secretary’s Report which was prepared by the Department of Planning in May 2015 stated at p 2:

As the current application does not seek approval to undertake any construction works or immediate use of the precinct for events, the Department is satisfied that the environmental, construction and operational issues raised in submissions can be largely addressed through the imposition of future environmental assessment requirements. Such requirements will be required to be addressed at the relevant future development application stage by the relevant consent authority.

22. The Secretary’s Report discussed submissions received from government agencies and from members of the public at pp 9-12. The concerns raised by the EPA in its submission were listed including inadequate assessment of construction related noise and vibration impacts. The Report then stated at p 10 that “following further consultation with the EPA, it has been confirmed that the key issues pertinent to the proposal are therefore limited” to site investigation and noise management of the WBAP in operation. The objection from a member of the public that the noise report was deficient and contained no assessment of construction noise impacts was also noted in the Report. In relation to submissions which raised construction related impacts the Secretary’s Report stated at p 14:

The Department…notes that any issues raised in submissions that relate to construction works… are not relevant to the application and are outside the scope of the Department’s assessment.

23. Under the heading “Construction Impacts” at p 31 it stated:

As detailed above, the proposal does not seek approval for any construction works. Furthermore, the applicant has advised that the staging and scope of future applications has not been determined at this stage. This being the case, it is relevant that matters relating to potential construction environmental impacts be fully considered at the future environmental assessment stages of the development. Accordingly, the Department has recommended that the applicant prepare and submit a detailed overarching Construction Framework Environmental Management Plan with the first development application.

Further to the above, the Department has recommended that sub-plans be prepared for each subsequent application to specifically address the following requirements:

•      demolition and construction waste management;

•      construction related noise and vibration;

•      dust control;

•      marine and ground water management;

•      construction runoff and sediment control; and

•      acid sulphate management.

The preparation of the above sub-plans will enable issues raised by the EPA to be addressed in detail including in relation to…construction noise.

Subject to the above, the Department is satisfied that the CFEMP and the sub plans will provides [sic] a suitable framework for managing the construction works associated with the future development of the [WBAP]. Detailed consideration of the specific construction related impacts of the project, as well as mitigation and management measures to offset potential impacts can also be considered in the assessment of future development applications.

24. The Consent was issued by the delegate on 21 May 2015. The development is described in Condition A1 of the Consent and comprises the same physical elements as described on p 1 of the EIS (although the wording differs). Condition A2 provides that the development will be “fully undertaken in accordance with the following documents and plans”. The table attached to this condition refers to the EIS and attached plans and reports, as amended by the Response to Submissions. The conditions referred to by the parties follow:

A2   DEVELOPMENT IN ACCORDANCE WITH PLANS AND DOCUMENTATION

The development will be fully undertaken in accordance [with] the following documents and plans:

Environmental Impact Statement titled “Walsh Bay Arts Precinct – State Significant Development Application – SSD 6069” prepared by MG Planning and dated 7 July 2014, as amended by the Response to Submissions titled “Walsh Bay Arts Precinct- State Significant Development Application – SSD 6069” prepared by MG Planning and dated January 2015
The following Concept Design Drawings prepared by Bates Smart titled “Walsh Bay Arts Precinct”
Name of Plan:	Drawing Number:	Date:
Site Plan – showing works for approval	A01.001[A]	2.06.2014
Elevations – showing Works for approval	A01.002[A]	2.04.2014
The following Reports appended to the Environmental Impact Statement and the Response to Submissions:
Name of Report:	Prepared by:	Date:
Accessibility Report- Walsh Bay Arts Precinct	Morris Goding Accessibility Consulting	1 March 2014
Walsh Bay Arts Precinct- BCA Assessment	Steve Watson & Partners	April 2014
Fire Safety Report- Walsh Bay Arts Precinct (2013/226 R1.2)	Stephen Grubits & Associates	24 February 2014
Phase 1 Environmental Site Assessment- Proposed Walsh Bay Arts Precinct Redevelopment	JBS&G	23 June 2014
Walsh Bay Arts Precinct- Heritage Impact Assessment (Rev.4)	Design 5 Architects	23 June 2014
Marine and Ground Water Assessment for the WBAP Redevelopment	Jacobs SKM	23 June 2014
Noise and Vibration Assessment	WSP	24 June 2014
Walsh Bay Arts Precinct Maritime Facilities Waterfront Square	Royal Haskoning DHV	3 April 2014
Arts NSW Walsh Bay Arts Precinct Sustainability Framework	ARUP	24 June 2014
Drainage Concept	ARUP	16 June 2014
Public Domain Concept Design Report	ASPECT Studios	March 2014
External Lighting, Signage/Wayfinding, Public Amenities and Waste Management Report	Bates Smart Pty Ltd	14 January 2015
Draft Event Operational Noise Management Plan	WSP	10 December 2014
Draft Operational Plan of Management	Arts NSW	January 2015
Traffic Management and Accessibility Plan	GTA Consultants	14 January 2015
Remediation Strategy titled “Proposed Walsh Bay Arts Precinct”	JBS&G	28 April 2015

except for as modified by the following pursuant to Section 89E(1) of the Act.

A3   DETERMINATION OF FUTURE APPLICATIONS

(a) In accordance with section 83B(3[)](b) of the EP&A Act, future stages of the concept proposal are to be the subject of future development applications.

(b)   The determination of future applications for development of the Walsh Bay Arts Precinct are to be generally consistent with the terms of this development consent as described in Part A of Schedule 2, and consistent with the terms of this development consent as described in Part A of Schedule 2, and subject to the modifications of the proposed development as set out in Part B of Schedule 2, and future conditions in Part C of Schedule 2.

…

A6   LIMITATIONS OF THIS CONSENT

This consent is limited to the approval of the concept for the Walsh Bay Arts Precinct only and does not give consent for any construction works. Such works shall be the subject of separate development applications.

…

A8   WALSH BAY ARTS PRECINCT WORKING GROUP (WBWG)

A Working Group is to be established prior to the lodgement of the first development application. The WBWG is to meet on a regular basis to discuss issues associated with design development and environmental impact resolution. The WBWG is to be convened by Arts NSW and is to include representative[s] from the City of Sydney, Office of Environment and Heritage, Transport for NSW, Roads & Maritime Services and Environment Protection Authority.

…

A13   OPERATIONAL EVENT NOISE MANAGEMENT PLAN

The applicant is to finalise the draft Operational Event Noise Management Plan (OENMP) for WBAP in consultation with the EPA and Council. Specifically, the EPA and Council are to be consulted in relation to the following:

(a)   relevant event noise control targets for each specific category of event;

(b)   the methodology for noise monitoring;

(c)   reasonable and feasible noise mitigation techniques specific to each category of event; and

(d)   required community consultation techniques specific to each category of event.

The Plan is to include the management strategies and mitigations measures included in Sections 7 and 8 of the Noise and Vibration Management Plan prepared by WSP dated June 2014.

A copy of the final OENMP is to be submitted to the Secretary and Council prior to the lodgement of the first development application.

A14   COMMUNITY CONSULTATION STRATEGY

Prior to the lodgement of the first development application, the applicant is to prepare a detailed community consultation strategy for the future construction and operation of the WBAP.. [sic] The Strategy is to include details for the communication between the Applicant (and its contractors), government agencies, Council and community stakeholders (particularly, adjoining landowners). The Strategy shall include, but not be limited to:

(a)   Procedures and mechanisms for regular dissemination of information on construction management, the operation of the facility and matters associated with environmental management.

(b)   Procedures and mechanisms to be implemented to resolve any issues/disputes that arise.

(c)   The establishment of a website for the provision of information associated with the development. The website is to include contact point(s) to which community complaints and inquiries may be directed, including a telephone number, a postal address and an email address.

Details demonstrating compliance with the terms of this condition are to be submitted to the Secretary prior to the lodgement of the first development application.

25. Various conditions which must be met in the future were specified. For example:

PART B – CONDITIONS TO BE MET IN FUTURE STAGES

…

B3 OPERATIONAL MANAGEMENT PLANS

All future applications for the fitout and adaptive reuse of the WBAP are to demonstrate compliance with the following:

a)   The final Operational Plan of Management prepared in accordance with Condition A12; and

b)   The final Operational Event Noise Management Plan in accordance with Condition A13.

Where future application/s require amendments to these Plans they are to be endorsed by the respective agencies/groups referred to in the respective Condition.

…

B16 NOISE IMPACT ASSESSMENT

Where relevant, future applications are to be include [sic] a Noise Impact Assessment (NIA) which includes performance based modelling. The NIA is to demonstrate how the recommendations in sections 7.0 and 8.0 of the Noise and Vibration Plan prepared by WSP dated June 2014 have been addressed, as relevant. The NIA is also to demonstrate how compliance can be achieved with the Operational Event Noise Management Plan prepared in accordance with Condition A13 of this consent.

26. The Second Respondent’s Statement of Reasons stated that the delegate decided to approve the SSDA because he agreed with the analysis and conclusions contained in the Secretary’s Report.

27. As already identified in par 3 above there are four grounds of review which allege that the impacts of constructing the WBAP should have been considered by the delegate. Whether the delegate should have is a question of statutory construction of the EPA Act and the determination of that matter will effectively determine all the grounds of review.

Applicant’s submissions

28. The proposal is for SSD and by virtue of s 89L, Div 4.1 prevails over other divisions in Pt 4 including Div 2A. Section 79C applies to SSD as specified in s 89H regardless of whether a development application is made under Div 2 or Div 2A (staged development). Staged development applications made under s 83B(1) are made, assessed and determined in the same way as other development applications under Pt 4. An application under s 83B is for approval of “concept proposals for development of a site”. “Development” is expansively defined in s 4 of the EPA Act. This application seeks approval for a concept for development of the WBAP. It is a nonsense to seek approval for a building without seeking approval for the construction of a building. A staged development application is still a development application under Pt 4. The subject matter of the application is the “development” for which consent is required. If it were the case that any aspect of the development which required further approval could be left out of consideration in assessing the staged development application, the consent authority would have nothing to assess. By making staged development applications subject to the same assessment processes as other development applications the statute effectively provides that each stage of a staged application will be assessed twice and will be subject to the same mandatory relevant considerations.

29. The words “concept proposals” used in s 83B(1) show that a staged development application will be less detailed than an ordinary development application per Walker v Minister for Planning (2007) 157 LGERA 124; [2007] NSWLEC 741 at [186]. Although a concept may be a “general notion”, it is not so divorced from reality that it has no relationship to real world impacts. A concept is certainly an idea, something which does not yet exist in the real world, but so are all development proposals. The real difference between a concept proposal and an ordinary development proposal is not that one is theoretical and the other real, but that the first is less detailed and the second more detailed.

30. The Applicant accepts that there is a qualitative difference between the assessment of a concept proposal and the assessment of an ordinary development application, but does not accept that this distinction authorises the consent authority to leave out of consideration a whole class of impacts, such as the impacts of construction. Rather, the distinction lies in the level of detail. The decision maker must consider all of the same factors when considering a staged development application, but will naturally consider them at a higher level of generality at the concept stage.

31. Alternatively, construction impacts such as noise and vibration should have been assessed as an indirect impact of the implementation of the proposal, relying on Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 at [47]-[48]. It is incontrovertible that the WBAP cannot come into existence without construction works. That another development application will need to be lodged and assessed before these impacts can occur does not relieve the consent authority of the obligation to consider those impacts when determining the first development application. Section 79C(1)(b) should not be read as containing an implied limitation that it excludes impacts which will be the subject of a separate assessment process under the EPA Act per Hoxton Park (Court of Appeal) at [55].

First Respondent’s submissions

32. Section 83B(1) distinguishes between “concept proposals for the development of a site” and “detailed proposals for separate parts of the site”. It is the former i.e. “concept proposals” which are the subject of a staged development application. However, the application may also, but is not required to, set out "detailed proposals" for the first stage of the development of part of the site.

33. The term “concept proposals” is important and distinguishes an application under Div 2A from other development applications. The EPA Act does not define “concept proposals”. The only other reference in the EPA Act to the term is in s 115ZD in relation to staged infrastructure proposals.

34. The ordinary meaning of the word “concept” is “a thought, idea, or notion, often one deriving from a generalising mental operation” (Macquarie Dictionary Online Edition). This clearly differs from a development consent under Div 2 of Pt 4 of the EPA Act which is intended to authorise more than an abstract idea, but rather something more, a form of physical development which can be brought into fruition without the need for a further development consent. The fact that s 83B permits the grant of development consent to a “concept proposal” cannot be ignored. The Applicant's approach would see a concept proposal treated no differently to any other development application. This would undermine the express intent of the legislature to facilitate approval of a concept proposal.

32. In the present case, it is plain that the application was a staged development application under s 83B that only set out “concept proposals for the development” of the site. The application form, the EIS, the Secretary’s Report and the Consent itself referred to the application for a concept proposal. These references also make it plain that the proponent requested the application be treated as a staged development application as required under s 83B(2). Accordingly, by operation of s 83B(3) of the EPA Act, the Consent did not authorise the carrying out of any development on any part of the site unless consent was subsequently granted following a further development application. As required under s 83B(4), this limitation on the effect of the Consent was set out in the terms of the consent (see Conditions A3(a), A6).

33. The primary effect of the Consent in its terms was to “grant consent to the development application referred to in Schedule 1 subject to the conditions in Schedule 2”. Schedule 1 to the Consent referred to the application being for “staged development (concept proposal) for the [site] comprising…” (Consent p 1). These references make it plain beyond any doubt that the Consent was determined for a staged development application under s 83B setting out a concept proposal for the development of the site. Condition A6 reflects s 83B(4).

Statutory construction and Ground 1

37. The four grounds of judicial review are premised on the assumption that s 79C(1) applied to the assessment of the SSDA so that construction impacts were a mandatory relevant consideration. A threshold issue of whether s 79C(1) applies in this manner is largely determined by the statutory construction of the relevant parts of the EPA Act. The First Respondent accepts that s 79C(1) applied to the determination of the SSDA, as provided in s 89H, but submits that the chapeau to s 79C makes it clear that not all matters specified in the section are required to be considered by a consent authority when determining a development application (DA). The chapeau refers to matters that “are of relevance to the development the subject of the development application”.

38. This matter requires consideration of the interaction between Div 2A Special procedures concerning staged development applications and Div 4.1 State significant development in Pt 4 of the EPA Act. SSD is provided for by s 89C Div 4.1 of Pt 4. Such development can be staged under Div 2A, as contemplated by s 89D(2) in Div 4.1. A further requirement for an application to be staged is that the applicant must pursuant to s 83B(2) request that the application be treated as a staged development application as occurred in this matter. At issue is what is meant by “concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications” in s 83B(1). There is no definition of “concept proposal” in the EPA Act.

39. The Applicant submits that the SSDA is for development because the concept proposal imprints a future development on the site. As the First Respondent submits, the SSDA does not seek approval for demolition, construction, erection or the use of land, most relevantly, or subdivision, less relevantly. These are the matters identified in the definition of development in the EPA Act. This SSDA does not seek consent for development as defined in the EPA Act. No carrying out of development can occur as a result of approval of this SSDA as provided in s 83B(3)(a). Condition A6 confirms this as it states specifically that no construction can occur as a result of the approval of the SSDA. The Applicant submitted that the proper construction of this condition is that it only withheld authorisation for the “commencement” of construction works. This construction is too narrow as the First Respondent submitted. No consent (authorisation) for construction has been given by the SSDA.

40. The delegate approved, and the conditions of consent confirm, a concept plan not permitting construction. The only two plans approved by the Consent, specified in the first two items in Condition A2, are a site plan and an elevations plan. These contain notations such as “proposed zone of balcony and stairs” on the Pier 2/3 structure. The conditions imposed address the future development of the WBAP through construction and use. Condition A13 requires the finalisation of the operational event noise management plan which will contain specific noise targets for events, monitoring methodology, noise mitigation techniques and community consultation for specific categories. Condition A14 requires a community consultation strategy to be established before lodgement of the first development application (under Div 2). Part B of the Consent refers to conditions to be met in future stages. For example, under Condition B3 all future applications must comply with the final operational event noise management plan in accordance with Condition A13. Condition B16 refers to noise impact assessment and requires performance based modelling and demonstrated compliance with noise goals.

41. The documentation provided by the proponent in the EIS and supporting documents was extensive as can be seen in the 16 reports and assessments itemised in Condition A2. The documentation was directed to assessing the project as built and used and addressed s 79C(1) matters in that context. The EIS was specifically directed to the concept proposal only and responded to matters raised in the D-G’s EARs. The EIS requirements specified by the D-G’s EARs related to the permissibility of the development, the suitability of the site, compliance with relevant instruments, the built form and urban design, ecologically sustainable development, transport and parking, impacts on harbour uses, drainage and utilities. With respect to noise, the EIS was directed to “[i]dentify the main sources during operation. Outline measures to minimise and mitigate the potential noise impacts on surrounding occupiers of land.” The noise and vibration report appended to the EIS addressed the noise and vibration impacts of the WBAP as built and used, primarily in response to D-G’s EAR no 5, to “[i]dentify the main noise sources during operation. Outline measures to minimise and mitigate the potential noise impacts on surrounding occupiers of land”. The concept design report addresses the design and operation of the WBAP as built and in use, discusses the aesthetics of the proposal and the way that users and the public will interact with it in its final form.

42. No cases considering the statutory scheme for concept proposals in staged development applications under Pt 4 Div 2A were found by the parties. Two cases in this Court considered concept approvals under Pt 3A, Haughton v Minister for Planning (2011) 185 LGERA 373; [2011] NSWLEC 217 and Walker. As already outlined in par 6 above, s 75M(2) of Pt 3A identified that an application for a concept plan must outline the scope of the project and any development options, set out proposals for the staged implementation of the project and contain any other matter required by the Director-General [of the Department]. A detailed description of the project was not required. Under s 83B(1) in Div 2A a staged development application sets out concept proposals for the development of a site. While not identical, the wording in former Pt 3A and current Pt 4 Div 2A is similar. Both refer to concept plans or proposals.

43. In Haughton application was made under Pt 3A s 75M for a concept plan for a project. That the application for a concept plan required only an outline of the scope of the project and no detailed description informed the Court’s consideration of the level of detail to which a mandatory relevant consideration such as the public interest must be considered.

44. In Walker the Minister approved a concept plan for a residential subdivision and retirement development. A ground of challenge in the judicial review proceedings was that the Minister’s concept plan approval was invalid because the approval lacked finality or deferred mandatory questions for later consideration. In concluding that the finality principle (Misonv Randwick Municipal Council (1991) 23 NSWLR 734) did not apply to a concept plan approved under s 75O of Pt 3A, Biscoe J considered that a “concept” is a “general notion”, referring to the Australian Oxford English Dictionary (at [186]). The legislation did not require a concept plan to have the finality of a development the subject of a subsequent project approval.

45. The definition of “concept” as identified in Walker and in the First Respondent’s submissions by reference to the Macquarie Dictionary applies to a DA made under Div 2A. A concept is a notion or idea. The relevant distinction between a DA under Div 2A and under Div 2 is not a matter of more or less detail being required. As highlighted in par 41 above a lot of detail was provided in the SSDA to enable an assessment of the impact of the use of the finished project. That there will inevitably be construction required in order for the project to reach fruition does not transform the SSDA into an application for construction work.

46. That a Div 2A development application is different from a Div 2 development application is reflected in Div 3A cl 70A of the EPA Regulation. A consent authority may allow an applicant for a staged DA to defer information otherwise required by cl 50(1)(a) and Pt 1 of Sch 1 to a subsequent development application.

47. Division 2A of the EPA Act provides for a staged DA which sets out a concept proposal for the development of a site. The last sentence of s 83B(1) provides that “the application may set out detailed proposals for the first stage of development”. That did not happen in this case. The scheme envisaged in s 83B is that once a concept proposal has been approved, subsequent development applications are made for physical development as provided by s 83B(3)(a). Later DAs must be consistent with the concept proposal pursuant to s 83D(2). Relevant to this case, when a DA is made for the first development stage of the WBAP it will be SSD. The same process of preparation of an EIS, as required by s 78A(8A), public consultation under s 89F and assessment will occur. Construction impacts will be assessed in light of detailed structural and work plans in that stage. Such a DA if approved will result in physical work taking place and will in all likelihood be issued conditionally requiring measures to be taken to mitigate construction impacts.

48. I adopt the First Respondent’s submissions concerning the distinction between a DA made under Div 2 and those under Div 2A. The two divisions address different forms of DA as reflected in their drafting. An application under Div 2 is made for the purpose of avoiding a contravention of the prohibition in s 76A of carrying out development without development consent where consent is required by an environmental planning instrument. The assessment of a Div 2 DA under s 79C requires consideration of a proposal that will result in physical work taking place subsequently if the DA is granted. The statutory scheme in Div 2A expressly provides for the approval of a concept in precisely the manner that has occurred in relation to the WBAP.

49. As the Applicant emphasised, s 89L Div 4.1 states that the division and other provisions or regulations made in relation to SSD prevail over other divisions (provisions) in Pt 4 to the extent of any inconsistency. That reflects the wording of s 89L but does not lead to the conclusion that s 79C(1) applies in the manner contended for by the Applicant in the context of this staged DA. As specified by the chapeau, s 79C(1) applies to the extent it is relevant to the application made under Div 2A.

50. The Applicant sought to rely on the regime for deferred commencement consents under s 80(3) of the EPA Act and Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [94]-[95], considering an earlier similar provision (s 91AA(1)) as providing guidance in construing s 83B(1). The Applicant also submitted that the power to grant a staged consent had existed in the EPA Act since subss 80(4) and (5) with the subheading “staged development” were inserted by the Environmental Planning and Assessment Amendment Act 1997 (NSW). Subsections 80(1)-(5) as originally inserted are extracted as follows:

80    Determination

(1)   General

A consent authority is to determine a development application by:

(a)   granting consent to the application, either unconditionally or subject to conditions, or

(b)   refusing consent to the application.

(2)   Despite subsection (l), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

(3)   “Deferred commencement” consent

A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

(4)   Staged development

A development consent may be granted:

(a)   for the development for which the consent is sought, or

(b)   for that development, except for a specified part or aspect of that development, or

(c)   for a specified part or aspect of that development

(5)   A development consent referred to in subsection (4) may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent.

…

51. The Applicant submitted that these provisions allowed the consent authority, when dealing with an ordinary development application lodged under s 78A, to grant partial consent and to provide that other parts or aspects of the development, or the carrying out of the whole development, were to be the subject of another consent. If an application was lodged under s 80(4), the application was for the whole of the development, notwithstanding that the consent may only be for part (S J Connelly v Ballina Shire Council (2010) 175 LGERA 408; [2010] NSWLEC 151 at [107]). Subsections (4) and (5) with modifications continue in s 80 under the subheading “total or partial consent” (as can be seen in the current version of the EPA Act set out above in par 4).

52. In Weal the appellant brought proceedings challenging the grant of development consent to his neighbour for the use of land as a rail freight terminal. The council granted a deferred commencement consent as was then provided for under s 91AA(1) of the EPA Act. The appellant contended that the grant of consent was void because the council failed to consider the noise impact of the development, or that its decision in relation to noise impact was Wednesbury unreasonable. The consent stated that it would not operate until the proponent satisfied the council that the relevant noise approvals had been obtained from the EPA. There were no conditions specifying the maximum noise emissions or specifying the levels of plant and equipment to be operated at different times in order to ensure that reasonable day and night noise levels were satisfied. This Court dismissed the judicial review proceedings. The Court of Appeal (Giles and Priestley JJA, Mason P dissenting) upheld the appeal from this Court and found (relevantly) that the council had failed to properly take into consideration the noise impact of the development, which it was required to do under s 90(1). The facility of the deferred commencement condition did not free the council from the obligation to consider all relevant matters as required by s 90(1) of the EPA Act.

53. The first difficulty with the Applicant’s reliance on the deferred commencement provisions as in force in Weal and subsequently in s 80(3) is that these are in Div 2 and are differently worded to s 83B(1) in Div 2A. More relevantly the provisions described as staged development before the introduction of Div 2A, namely subss 80(4)-(5), were in quite different terms and also in Div 2. Subsections 80(4)-(5) were amended in 2005 with the deletion of “staged development” and insertion of “total or partial consent” in the subheading to s 80(4) and minor changes in wording in subs (5). Staged development as now described in Div 2A is entirely different from staged development as described formerly in s 80(4) and (5) in Div 2. Second, nothing explicitly in the EPA Act suggests that the two different divisions inform the construction of the other. Such a conclusion must arise by inference and there is no statutory basis for drawing such an inference.

54. Third, Div 2A was inserted into the EPA Act in 2005, several years after Weal was determined. The Applicant’s submission that when Div 2A was inserted in 2005 the legislature did so with knowledge of the history of the interpretation of the deferred commencement provisions in Weal lacks any evidential basis. Nothing in the Second Reading Speech for the Environmental Planning and Assessment Amendment (Infrastructure and other Planning Reform) Bill 2005 (NSW) assists the Applicant’s case in this regard. The Applicant submitted that the New South Wales Parliament must have been aware of Weal when it passed Div 2A and that division should therefore be read as if Weal applies to its construction. The reverse construction is more orthodox, namely that as Weal was determined in relation to a different division of the EPA Act and predates Div 2A it would not be assumed to apply to its construction. Fourth, in the absence of any explicit provision, no inference in the EPA Act arises based on the deferred commencement provision in s 80(3) of Div 2, Pt 4 of an intention to apply the same mandatory relevant considerations to each stage of a staged development process, including the initial concept proposal under Div 2A. As the Applicant’s submissions noted the deferred commencement provisions in the EPA Act (s 91AA and later s 80(3)) never provided for approval of a “concept” until Div 2A was introduced. Nor did the staged development provisions in subss 80(4) and (5). Consequently, there is no basis for construing s 83B(1) in Div 2A in light of the original staged development provisions as they first appeared in subss 80(4) and (5).

55. In the alternative the Applicant submitted that the impacts of construction were indirect impacts and therefore mandatory relevant considerations. The Applicant relied on Hoxton ParkResidents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 where the Court found that a likely impact of development of a school to be accessed by a road over a bridge included the construction impacts of the bridge not the subject of the DA for the school by virtue of s 79C(1)(b). This reasoning was upheld on appeal in Hoxton Park (Court of Appeal) by Basten JA (Giles and Macfarlan JJA agreeing) at [43]-[46]. The obvious point of distinction from this matter is that the DA in that case sought consent for construction. In light of my reasoning above this case can provide no assistance to the Applicant. Construction work cannot arise as an indirect impact from this consent. Also relevant in Hoxton Park was that the bridge would be assessed under a different process (Pt 5), here all stages are to be assessed as staged SSD under Pt 4.

56. The Applicant attempted to draw an analogy with the statutory regime in s 81A of Div 2 whereby construction of a building is not authorised until a construction certificate is granted. The same submission stated that the impacts of constructing the building should not be ignored when determining a development application for erection of a building. This SSDA is not however for the erection of a building. The construction of the project is not part of the subject matter of the SSDA approved.

51. The Applicant submitted that the reasoning in Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 applied by analogy in this case. That case concerned a judicial review challenge by the Tobacco Institute of a report issued by the National Health and Medical Research Council (NHMRC) into the health effects of passive smoking. Pursuant to s 12 of the National Health and Medical Research Council Act 1992 (Cth), the NHMRC was required to have regard to any submissions received during a mandatory public consultation process before making recommendations or issuing guidelines. The NHMRC did not consider scientific evidence (data, reports, papers etc) which had not been “peer reviewed”, that is reviewed by at least one independent reviewer. The Tobacco Institute challenged the conduct of the NHMRC making the recommendations contained in the report on a number of grounds, including failure to comply with its statutory duty under s 12(3), failure to have regard (or genuine regard) to relevant considerations, failure to accord procedural fairness to the Tobacco Institute and unreasonableness.

52. Justice Finn held that the provisions of s 12(3) required the NHMRC to have regard to submissions received irrespective of whether they were found to contain matter relevant to the decision (at 277E). The NHMRC was obliged to have regard to the submissions received in preparing the draft recommendation, to take them into account and to give positive consideration to their contents as a fundamental element in its decision making (at 277F). It was not sufficient for the NHMRC to state that it was aware of the non peer reviewed material submissions and studies but that it gave no weight to them (at 279E-F). Such a conclusion did not indicate that positive consideration was in fact given to those parts of submissions containing material with which the NHMRC did not wish to engage (at 279F). Comments in the draft report confining the review conducted to peer reviewed materials did not provide adequate evidence of positive consideration but rather were held to show an unpreparedness to consider those parts of the submissions (at 279G).

53. The Applicant submitted that the reasoning of Finn J applied here as the delegate closed his mind to the consideration of matters which the statute required him to consider under s 79C(1). In Tobacco Institute the relevant statute specifically required regard to be had to any submissions received during the mandatory public consultation process. The statutory scheme under the EPA Act which I have discussed above including s 79C(1) and the chapeau is quite different to the explicit statutory requirement to consider specified matters in Tobacco Institute. The reasoning in Tobacco Institute has no relevance to this matter.

54. Given my findings on statutory construction, the Applicant’s case based on s 79C(1)(b) falls away. Construction impacts are not a mandatory relevant consideration in the staged development envisaged by the concept proposal approved by the Minister’s delegate.

55. In a bootstraps approach to its case, the Applicant’s counsel took the Court to numerous documents annexed to the EIS submitted to the Second Respondent as part of the development assessment process. Pursuant to Condition A2 extracted above in par 24, the development will be undertaken fully in accordance with the EIS and the reports appended to the EIS listed in Condition A2. The Applicant attempted to demonstrate that it was possible based on that material to set noise goals to protect surrounding businesses during construction applying the Interim Construction Noise Guideline (2009) in the manner it contended for. An assessment and setting of noise goals for construction for residential and commercial receivers could have been made in the absence of construction ready plans in the Applicant’s view.

56. The Applicant submitted that none of those reports could have been prepared without considering construction impacts. For example, the quantity surveyor's report used to calculate the project cost for the purposes of determining the development application fee payable under cl 256KA of the EPA Regulation was relied on as it provided extensive detail about the work to be undertaken, such as the number of piers to be replaced under Pier 2/3 being 180. The noise and vibration report which considered the project as if built to determine the impact of its use on the surrounding land use was referred to as demonstrating that a similar exercise of making assumptions about the nature of the construction activity could have been undertaken to achieve construction noise goals. The heritage impact report was also referred to, which the Applicant submitted had to assess construction impacts. With regard to the BCA report, the Applicant submitted that the BCA assessor had no difficulty assessing the construction impact of the development. The plans and sections included in the Public Domain concept design report were submitted to be evidence that great detail about the structure of the development was already known.

57. The Court was also taken to the maritime facilities report, the contamination report and the environmental site assessment in order to demonstrate that a detailed assessment was undertaken at the concept proposal stage. That a detailed assessment had been undertaken meant on the Applicant's case that construction impacts on surrounding businesses and residents could and should have been considered.

58. As the First Respondent submitted, that the decision maker could have assessed construction impacts, about which I make no finding I should add, does not cause s 79C(1)(b) to apply as a mandatory relevant matter at the concept proposal stage. The statutory scheme determines what is a mandatory relevant consideration per Minster for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; [1986] HCA 40 at 39-40.

59. The Applicant submitted that the delegate could have decided that if construction noise limits were likely to be exceeded once detailed plans were prepared then businesses and residents could have the option of relocation during works or be compensated for their losses. Such measures can also be considered as part of the first stage DA submitted under Div 2 when construction ready plans will enable an assessment of construction work noise and vibration and any other impacts.

60. I have not ruled on the objections of the First Respondent on the grounds of relevance to some of the Applicant’s evidence. Those objections should be upheld in relation to the Applicant’s sole director’s affidavit which identifies her opinion as to the potential negative economic impacts on her business of the construction of the WBAP, as summarised above in par 11. Given the approval for a concept plan only there is presently no legal effect on her business. The draft D-G’s EARs which included construction noise impacts and the subsequent marked up copy of the same with construction impacts deleted (discussed above at pars 12-15) are also not relevant to these judicial review proceedings.

61. Ground 1 fails.

Ground 2 failure to comply with s 79C(1)(d)

68. The Applicant claims that the delegate did not comply with subs (1)(d) because he failed to consider the submissions by the Applicant and others which identified construction impacts such as noise and vibration, dust and construction related traffic impacts when he decided to grant consent. This argument was based on applying the reasoning in Tobacco Institute which I considered above in pars 57-59, rejecting its application given the significant differences between the statutory regime considered there and the relevant parts of the EPA Act.

69. The Secretary’s Report identified the submissions received from public authorities such as the EPA and members of the public including the Applicant, as outlined above in pars 21-23. The submissions were considered to the extent they related to the concept proposal for the WBAP as built and used. As the First Respondent submitted, for the same reasons that construction impacts were not a mandatory relevant consideration under subs (1)(b) nor will submissions which deal with construction noise be a mandatory relevant consideration to the development the subject of the staged SSDA.

70. This ground of review fails.

Ground 3 failure to make inquiries

71. Paragraph 19A of the Amended Summons provides:

19A By reason of the facts and matters matters [sic] pleaded at paragraphs 7-19 above, and his failure to make inquiries about the impact of construction noise and vibration, dust and construction-related traffic impacts likely to be caused by the Proposal, the second respondent constructively failed to exercise his powers in relation to the grant of the Consent under s.89E(1) of the EP&A Act.

72. It is unnecessary that I explore whether a duty to inquire in the terms suggested by the Applicant’s case exists. On the assumption such a ground of review exists, as the First Respondent submitted a failure to inquire can only arise if such an obligation is found to exist. I have accepted that there was no duty imposed under s 79C(1) to consider construction impacts as a mandatory relevant consideration in relation to the SSDA so that there cannot have been a mandatory duty placed on the delegate to inquire into those impacts. This ground of review fails.

Ground 4 Wednesbury unreasonableness

73. Paragraph 19B of the Amended Summons provides:

19B   By reason of the facts and matters pleaded at paragraphs 7-19 above, the decision by the second respondent not to take into account the impact of construction noise and vibration, dust and construction-related traffic impacts likely to be caused by the Proposal was so unreasonable that no reasonable decision-maker would have made it, because:

a)   he was aware that the Environment Protection Authority and at least one objector were concerned about construction-related impacts;

b)   if he had made inquiries, he would have received information to indicate that the construction-related impacts were likely to cause the impacts described in para 13 above;

c)   if he had made inquiries, he would have received information about reasonable and feasible measures which could have been taken to mitigate construction-related impacts; and

d)   those inquiries were not made.

74. As I have found that there was no duty to consider construction related impacts as a mandatory relevant consideration in the manner contended for by the Applicant, the delegate’s decision not to take into account such impacts cannot be unreasonable in the Wednesbury sense. This ground of review fails.

75. The Applicant’s Amended Summons is dismissed.

76. The Court has a wide discretion to make a costs order under s 98 of the Civil Procedure Act2005 (NSW). Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides the usual rule that costs follow the event. That is the usual rule in judicial review proceedings in this Court. An order will be made that the Applicant must pay the First Respondent’s costs of these proceedings unless a Notice of Motion seeking alternative orders is filed by any party within 14 days.

Orders

77. The Court orders:

1. The Applicant’s Amended Summons is dismissed.

2. The Applicant is to pay the First Respondent’s costs as agreed or assessed unless a Notice of Motion seeking other orders is filed by any party within 14 days of this judgment.

3. The exhibits are to be returned.

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Amendments

25 October 2016 - typographical error, cover page decision date

Decision last updated: 25 October 2016