Coffs Harbour City Council v The Minister for Planning and Infrastructure
[2012] NSWLEC 4
•23 January 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Coffs Harbour City Council v The Minister for Planning and Infrastructure & Others [2012] NSWLEC 4 Hearing dates: 28, 29 and 30 June 2011 + written submissions on 4, 5 and 6 July 2011 Decision date: 23 January 2012 Jurisdiction: Class 4 Before: Sheahan J Decision: 1. The amended summons is dismissed.
2. Costs are reserved.
3. All exhibits are returned.
Catchwords: JUDICIAL REVIEW: challenge to a concept plan approval granted under the since-repealed Part 3A of the EPA Act, on the basis of error of law, uncertainty, expiry of time in which requirements or guidelines remain current, failure to consider a mandatory matter, failure to properly identify the proponent, and inadequate environmental assessment - discretion - impact of the repeal of Part 3A, and of the associated amendment of the relevant SEPP Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Interpretation Act 1987
State Environmental Planning Policy (Major Development) 2005
State Environmental Planning Policy (Major Development) Amendment 2011
Coffs Harbour Local Environmental Plan 2000Cases Cited: ACR Trading Pty Ltd and anor v Fat-Sel Pty Ltd and anor (1987) 11 NSWLR 67
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Auburn Municipal Council v Szabo & Anor (1971) 67 LGRA 427
Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223; (2010) 177 LGERA 312
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Currey v Sutherland Shire Council [2002] NSWLEC 195
Currey v Sutherland Shire Council and Russell [2003] NSWCA 300; (2003) 129 LGERA 223
Drake-Brockman v Minister for Planning & Anor [2007] NSWLEC 490; (2007) 158 LGERA 349
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 64 WN (NSW) 107, 47 SR (NSW) 416
Hornsby Shire Council v Devery & Ors (1965) 12 LGRA 34
Kindimindi v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2009) 209 CLR 597
Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423
Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876; (2008) 162 LGERA 322
Nguyen v Minister for Health & Ageing [2002] FCA 1241; (2002) 71 ALD 529
Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230
Pittwater Council v Minister for Planning [2011] NSWLEC 162
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Randwick Municipal Council v Broten [1964-5] NSWR 1445; (1964) 10 LGRA 271
Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 102 LGERA 52
Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396
Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited [2008] NSWLEC 185; (2008) 160 LGERA 20
Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; (2003) 131 FCR 300
Walsh v Parramatta City Council and Alam [2007] NSWLEC 255; (2007) 161 LGERA 118
Warringah Shire Council v Sedevcic (1987) 63 LGRA 361
Westfield Management Limited v Perpetual Trustee Company Limited & Anor. [2006] NSWCA 245
Whittaker v Comcare (1998) 86 FCR 532
Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508
Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422; (2004) 136 LGERA 288Category: Principal judgment Parties: Coffs Harbour City Council (Applicant)
The Minister for Planning and Infrastructure (First Respondent)
Sandy Shores Developments Pty Ltd (Second Respondent)
The Director-General of the Department of Planning and Infrastructure (Third Respondent)Representation: Dr J Griffiths SC and Mr J Hutton (Applicant)
Ms H Irish, Barrister (First and Third Respondents)
Mr P Tomasetti SC and Mr N Eastman (Second Respondent)
Sparke Helmore (Applicant)
Department of Planning and Infrastructure (First and Third Respondents)
Gadens Lawyers (Second Respondent)
File Number(s): 40219 of 2011
Judgment
Introduction
The second respondent, named in the pleadings as " Sandy Shores Developmen ts Pty Ltd ", but sometimes referred to as "Sandy Shore Developmen t Pty Ltd", is the beneficiary of a " Part 3A " concept plan approval ('the Approval'), given by the first respondent Minister on 20 December 2010 , with the advice of the third respondent Director-General, pursuant to the now-repealed Part 3A of the Environmental Planning and Assessment Act 1979 (' EPA Act' ).
The Approval covers a subdivision proposed for 49ha of land near Coffs Harbour (described in the summons and by the second respondent as Lot 22 DP 1070182, and Lots 497 and 498 DP 22798), of which the second respondent company is registered proprietor. (The submissions of the two State government respondents give the second DP number as 227298). The project is sometimes referred to as " Sandy Beach North ", but the Council opposes it. Up to 300 lots have been sought at various stages of the matter, but the Council essentially supports no more than 35. The company's proposal is permissible with consent under the current planning regime, but the site has " severe environmental and ecological constraints ", and Council has proposed that most of it be rezoned Environmental Protection 7A. Such a rezoning would limit development to 35 dwellings, on part only of the 49ha. The Approval is for approximately 200 lots.
The Council's proceedings were commenced by summons filed on 15 March 2011 against only the first and second respondents. On 17 June 2011 , after the filing of Points of Claim and Points of Defence, Pepper J granted leave to the Council to join the Director-General as third respondent. The Director-General is represented by the same counsel as the Minister (Ms H Irish).
An Amended summons and Amended Points of Claim ('APOC') and Defence ('APOD') were filed between 17 and 28 June 2011, and the hearing proceeded on the basis of those amended pleadings, on 28, 29 and 30 June 2011, albeit that in some respects the applicant was accused by the respondents of going, in argument, beyond what it had pleaded.
The primary evidence at the hearing was an extensive agreed bundle of documents ( Exhibit C1 ), which was supplemented considerably during the hearing, with little objection. Those documents came into existence on various dates prior to, and including, 20 December 2010 .
Leave was granted at the conclusion of the June hearing for the respondents to reply in writing to some oral submissions made by the applicant regarding the possible relevance to, and effect on, the proceedings, of the State Environmental Planning Policy (Major Development) Amendment 2011 ('the 2011 SEPP amendment'), made to the State Environmental Planning Policy (Major Development) 2005 ('the 2005 SEPP'), on 13 May 2011 . On that date the New South Wales Government removed from the Part 3A " system " some 63 projects, including coastal subdivisions (see Planning Circular PS 11-021).
The first respondent made its further written submissions on 4 July, the second respondent on 5 July, and the applicant replied to both those submissions on 6 July 2011.
The Nature of the Challenge
The Council's challenge is brought on the grounds that:
(1) the Director-General's requirements (' DGRs ') for the environmental assessment (' EA ') of the project had a life of only two years, and, although some documentation was provided to the Minister or his Department, i.e. the Department of Planning and Infrastructure ('the Department'), within two years, the expiry date of the DGRs was never extended, and the actual assessment documentation was not provided before the time expired;
(2) there is an error of law in, and/or a state of uncertainty created by, the terms of the Approval; and
(3) although the second respondent, the company Sandy Shores Developments Pty Ltd, asserts that it is the beneficiary of the subject Approval, that Approval was granted on the application of, and in favour of, a " phantom " proponent, albeit one associated with that company, whereas the law requires the proponent to be a " legal entity ".
The Relief Sought
The substantive relief sought in the Amended Summons is as follows:
1. A Declaration that the first respondent's purported approval on 20 December 2010 of the Concept Plan is invalid.
1A. An Order setting it aside.
1B. A Declaration that the third respondent's decision to accept the second respondent's EA under sub-section 75H(3) of the EPA Act , and make it publicly available, was invalid.
1C. A Declaration that the Director-General's report dated 20 December 2010 is invalid.
2. An Order restraining the second respondent from acting in reliance upon the Approval.
3. That the respondents pay the applicant's costs of the proceedings.
4. Such further or other Order as the nature of the case requires.
The Judgment
I turn, firstly, to set out the relevant provisions of the EPA Act and Regulations, as they applied at the time of the relevant decisions in December 2010. I will then turn (at [29] below) to summarise the evidence before the court, and then (at [112]) to summarise and review the parties' submissions.
The statutory regime at the time
Part 3A of the EPA Act dealt with " Major Infrastructure and other projects ".
In Division 2 of Part 3A, s 75D provided that " a person " is not to carry out development without the Minister's approval, and s 75E speaks of " the proponent " applying for the approval of the Minister to carry out a project.
In contrast, Part 4 of the Act does not use the term " proponent ". It provides, in s 78A, that the application for consent to carry out development (under that part) might be made by " a person ". However, in s 75A of Part 3A, the following definition is found:
proponent of a project, means the person proposing to carry out development comprising all or any part of the project, and includes any person certified by the Minister to be the proponent.
The term " person ", is defined in s 21 of the Interpretation Act 1987 (' Interpretation Act ') in the following terms:
person includes an individual, a corporation and a body corporate or politic.
None of the constituent terms used in that definition of " person " is separately defined in the Interpretation Act .
Section 75F dealt with the Director-General's environmental assessment requirements ('the DGRs') in the following terms (emphasis added):
75F Environmental assessment requirements for approval
(1) The Minister may, after consultation with the Minister for the Environment, publish guidelines in the Gazette with respect to environmental assessment requirements for the purpose of the Minister approving projects under this Part (including levels of assessment and the public authorities and others to be consulted).
(2) When an application is made for the Minister's approval for a project, the Director-General is to prepare environmental assessment requirements having regard to any such relevant guidelines in respect of the project.
(3) The Director-General is to notify the proponent of the environmental assessment requirements . The Director-General may modify those requirements by further notice to the proponent .
(4) In preparing the environmental assessment requirements, the Director-General is to consult relevant public authorities and have regard to the need for the requirements to assess any key issues raised by those public authorities.
(5) The environmental assessment requirements may require an environmental assessment to be prepared by or on behalf of the proponent in the form approved by the Director-General.
(6) The Director-General may require the proponent to include in an environmental assessment a statement of the commitments the proponent is prepared to make for environmental management and mitigation measures on the site.
(7) This section is subject to section 75P.
Note. Section 75P enables the Minister to determine environmental assessment requirements for approval to carry out the project or any stage of the project when giving approval to a concept plan for the project under Division 3.
...
Section 75G had earlier been repealed, and s 75H dealt with the assessment and public consultation processes, in the following terms (emphasis added):
75H Environmental assessment and public consultation
(1) The proponent is to submit to the Director-General the environmental assessment required under this Division for approval to carry out the project.
(2) If the Director-General considers that the environmental assessment does not adequately address the environmental assessment requirements , the Director-General may require the proponent to submit a revised environmental assessment to address the matters notified to the proponent.
(3) After the environmental assessment has been accepted by the Director-General, the Director-General must, in accordance with any guidelines published by the Minister in the Gazette, make the environmental assessment publicly available for at least 30 days.
...
(6) The Director-General may require the proponent to submit to the Director-General:
(a) a response to the issues raised in those submissions, and
(b) a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and
(c) any revised statement of commitments.
...
Section 75I set out mandatory requirements in respect of the Director-General's environmental assessment report ('EAR'), in the following terms (emphasis added):
75I Director-General's environmental assessment report
(1) The Director-General is to give a report on a project to the Minister for the purposes of the Minister's consideration of the application for approval to carry out the project.
(2) The Director-General's report is to include :
(a) a copy of the proponent's environmental assessment and any preferred project report , and
(b) any advice provided by public authorities on the project, and
(c) a copy of any report of the Planning Assessment Commission in respect of the project, and
(d) a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and
(e) except in the case of a critical infrastructure project-a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and
(f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate, and
(g) a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project.
Under s75J(1) the Minister could approve or disapprove " the carrying out of the project ", once the application is made under Part 3A, and the Director General has given his or her EAR. Section 75J(2) and (3) set out some mandatory and optional considerations for the Minister. Section 75J(4) enabled the Minister to modify the project and/or impose conditions on any project approval. Section 75J(5) provided that the conditions could require " the proponent to comply with any obligations in statement of commitments made " by it. Section 75JA made special provisions regarding " biobanking ". Section 75K dealt with appeals by a proponent who may be dissatisfied with the Minister's determination with respect to an application. Section 75L provided for appeals by an objector.
Division 3 of Part 3A dealt with approval of concept plans for certain projects, and the relevant sections provided as follows (emphasis added):
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).
75N Environmental assessment, public consultation and Director-General's report for concept plan
Sections 75F (Environmental assessment requirements for approval), 75H (Environmental assessment and public consultation) and 75I (Director-General's environmental assessment report) apply, subject to the regulations, with respect to approval for the concept plan for a project in the same way as they apply with respect to approval to carry out a project .
75O Giving of approval for concept plan
(1) If:
(a) the proponent makes an application for the approval of the Minister under this Part of a concept plan for a project, and
(b) the Director-General has given his or her report on the project to the Minister,
the Minister may give or refuse to give approval for the concept plan for the project .
(2) The Minister , when deciding whether or not to give approval for the concept plan, is to consider :
(a) the Director-General's report on the project and the reports and recommendations ( and the statement relating to compliance with environmental assessment requirements ) contained in the report, and
(b) if the proponent is a public authority-any advice provided by the Minister having portfolio responsibility for the proponent, and
(c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.
(3) In deciding whether or not to give approval for the concept plan for a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for a concept plan for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.
(4) Approval for a concept plan may be given under this Division with such modifications of the concept plan as the Minister may determine .
(5) Approval for the concept plan may be given under this Division subject to satisfactory arrangements being made, before final approval is given for the project or any stage of the project under this Part or under the other provisions of this Act, for the purpose of fulfilling the obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).
75P Determinations with respect to project for which concept plan approved
(1) When giving an approval for the concept plan for a project, the Minister may make any (or any combination) of the following determinations:
(a) the Minister may determine the further environmental assessment requirements for approval to carry out the project or any particular stage of the project under this Part (in which case those requirements have effect for the purposes of Division 2),
(b) the Minister may determine that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act (in which case the project or that stage of the project ceases to be a project to which this Part applies),
(c) the Minister may determine that no further environmental assessment is required for the project or any particular stage of the project (in which case the Minister may, under section 75J, approve or disapprove of the carrying out of the project or that stage of the project without further application, environmental assessment or report under Division 2).
(1A) The further requirements for approval to carry out the project or any part of the project that the Minister may determine under subsection (1) (a) are not limited to matters that the Director-General may require under Division 2.
Note. The Minister may, for example, require a design competition for any building that is part of the project.
(2) If the Minister determines that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, the following provisions apply :
(a) the determination of a development application for the project or that stage of the project under Part 4 is to be generally consistent with the terms of the approval of the concept plan,
(a1) any consent granted for the project or that stage of the project under Part 4 is to be subject to such conditions as the Minister directs for the purpose of fulfilling the obligations in a statement of commitments submitted by the proponent (in which case those conditions cannot be modified without the approval of the Minister and a person cannot appeal to the Court under this Act in respect of the direction or any such conditions imposed by the consent authority),
(b) the project or that stage of the project is not integrated development for the purposes of Part 4,
(c) any further environmental assessment of the project or that stage of the project under Part 4 or Part 5 is to be undertaken in accordance with the requirements determined by the Minister when approving the concept plan (despite anything to the contrary in that Part) ,
(c1) a provision of an environmental planning instrument prohibiting or restricting the carrying out of the project or that stage of the project under Part 4 (other than a project of a class prescribed by the regulations) does not have effect if the Minister so directs,
(d) the Minister may, by order, declare that that stage of the project (or any part of it) is exempt or complying development for the purposes of this Act,
(e) the Minister may, by order, declare that that stage of the project (or any part of it) is not designated development for the purposes of this Act,
(f) the Minister may, by order, revoke or amend (as the case requires) the declaration of the project under this Part.
An order under paragraph (d), (e) or (f) is to be published in the Gazette and has effect according to its tenor.
Section 75Q dealt with appeal rights of proponents, when the Minister refuses approval of a concept plan .
Division 4 of Part 3A applied, to proposals coming within Part 3A, various provisions of the EPA Act and other legislation . The following section in that division is relevant to the present case (emphasis added):
75R Application of other provisions of Act
(1) Part 4 and Part 5 do not, except as provided by this Part, apply to or in respect of an approved project (including the declaration of the project as a project to which this Part applies and any approval or other requirement under this Part for the project).
(2) Part 3 and State environmental planning policies apply to:
(a) the declaration of a project as a project to which this Part applies or as a critical infrastructure project, and
(b) the carrying out of a project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project.
(3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.
Note. See sections 75J (3) and 75O (3) in relation to the application of such instruments when an application for approval of a project or a concept plan is being considered .
...
It is to be noted, in the context of s 75R, that s 75A defined an " approved project " as "... a project to the extent that it is approved by the Minister under this part, but does not include a project for which only approval for a concept plan has been given ".
Division 5 of Part 3A contained miscellaneous provisions, of which the following would appear relevant (emphasis added):
75W Modification of Minister's approval
(1) In this section:
Minister's approval means an approval to carry out a project under this Part, and includes an approval of a concept plan.
modification of approval means changing the terms of a Minister's approval, including:
(a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and
(b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval.
(2) The proponent may request the Minister to modify the Minister's approval for a project . The Minister's approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part.
(3) The request for the Minister's approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.
(4) The Minister may modify the approval (with or without conditions) or disapprove of the modification.
(5) The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court . The Court may determine any such appeal.
(6) Subsection (5) does not apply to a request to modify:
(a) an approval granted by or as directed by the Court on appeal, or
(b) a determination made by the Minister under Division 3 in connection with the approval of a concept plan.
(7) This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan .
75X Miscellaneous provisions relating to approvals under this Part
(1) If the proponent of a project (or proposed project) is the Minister or the corporation constituted by section 8 (1), the project must be the subject of a review by the Planning Assessment Commission.
(2) The following documents under this Part in relation to a project are to be made publicly available by the Director-General :
(a) applications to carry out projects,
(b) environmental assessment requirements for a project determined by the Director-General or the Minister,
(c) environmental assessment reports of the Director-General to the Minister,
(d) approvals to carry out projects given by the Minister,
(e) applications for the Minister's approval of concept plans (and approvals of concept plans) ,
(f) requests for modifications of approvals given by the Minister and any modifications made by the Minister.
(3) The Minister may, but is not required to, give reasons to the proponent for:
(a) any disapproval, or conditions or modifications, of a project, or
(b) any disapproval, or modifications of, a concept plan for a project, or
(c) any conditions of approval of a modification of the approval of a project.
(4) The validity of an approval or other decision under this Part cannot be questioned in any legal proceedings in which the decision may be challenged except those commenced in the Court within 3 months after public notice of the decision was given.
(5) The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N ). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project.
In respect of s 75X, including sub-s (5), see the decision of Jagot J in Tugun Cobaki Alliance Inc v Minister for Planning and RTA ("Tugun Cobaki") [2006] NSWLEC 396, at [179]-[184].
Section 75Y provided as follows:
75Y Lapsing of approvals
(1) An approval under this Part may be subject to a condition that it lapses on a specified date unless specified action with respect to the approval has been taken (such as the commencement of work on the project or the submission of an application for approval to carry out a project for which concept approval has been given).
(2) Any such condition may be modified under this Part to extend the lapsing period. The Minister is to review the approval before extending the lapsing period and may make other modifications to the approval (whether or not requested by the proponent).
Section 75Z enacted a power to make regulations which make provision for, or with respect to, the approval of projects and concept plans for projects under Part 3A. The power extended to prescribing time limits for dealing with applications " or other matters under this part ", such as the Director General's duty to make documents publicly available. Part 1A of the Environmental Planning and Assessment Regulation 2000 (' Regulation ') relevantly included (in Reg 8A ) definitions, (in 8B ) "Matters for environmental assessment and Ministerial consideration", (in 8C ) "Time limits for dealing with applications and other matters" as imposed on the Director General, (in 8E ) various appeal rights, including provision for deemed refusal and, (in 8F ) owner's consent. Regulation 8J made detailed " transitional provisions ".
Regulation 8D is headed " Rejection of applications if proponent fails to comply with requirements ", and includes:
...
(2) If:
(a) any such application has not been duly made, and
(b) the Director-General has notified the proponent of the action required to ensure that the application is duly made, and
(c) the proponent has failed to take that action within 14 days after being so notified,
the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires).
(3) If:
(a) the proponent has failed to comply with the Director-General's requirements under section 75H of the Act in connection with an application, and
(b) the Director-General has notified the proponent of the requirements that have not been complied with, and
(c) the proponent has failed to comply with those requirements within 21 days after being so notified,
the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires).
...
Regulation 8G dealt with public information and the departmental website, in the following terms:
8G Public information about documents relating to projects
(1) This clause applies to the duty of the Director-General under section 75X (2) of the Act to make specified documents relating to a project publicly available.
(2) The documents are to be made available on the Department's website and in such other locations as the Director-General determines.
(3) The documents are to be posted on the Department's website and in those other locations within 14 days of:
(a) in the case of a document that is an application, request or submission-the date on which the application, request or submission is made, or
(b) in the case of a document that is a determination of environmental assessment requirements, a report or an approval-the date on which the determination, report or approval is made or given.
(4) In addition to the documents referred to in section 75X (2) of the Act, the Director-General is to include on the Department's website and in such other locations as the Director-General determines the following documents:
(a) the declaration of development as a project to which Part 3A of the Act applies or its declaration as a critical infrastructure project,
(b) guidelines published under section 75F or 75H of the Act,
(c) any environmental assessment in relation to a project that has been placed on public exhibition under section 75H of the Act,
(d) responses to submissions, preferred project reports and other material in relation to a project provided to the Director-General by the proponent after the end of the public consultation period (whether under section 75H (6) of the Act or otherwise),
(e) reports of panels under section 75G of the Act (as in force before its repeal) or of reviews by the Planning Assessment Commission,
(f) any reasons given to the proponent by the Minister as referred to in section 75X (3) of the Act.
(5) A document may be made available on the Department's website by providing an electronic link to the document on another website.
The Evidence
It is necessary to examine closely now the nature and contents of all the documents before the court, and the chronology of events which may be relevant to the Council's challenge.
Representatives of the second respondent met with departmental officers on 11 October 2005 ( tab 1 ) to discuss the project. The subject site was clearly identified as comprising 49ha of land at Sandy Beach, of which 29.5ha was zoned Residential 2A, 8.7ha Residential Tourist 2E, and 10.8ha Enviro-Protection or Scenic 7A and 7B. The development concept explored was in four precincts, with 250-300 residential lots ranging in size from 400m 2 to 2000m 2 , with development restricted to the flatter areas of the site (with minimal tree cover), and 50% of the site to be preserved as open space.
On 4 November 2005 , Charles Hill of Planning Workshop Australia (' PWA '), wrote to the then Deputy Director-General (Mr Haddad) following up on that discussion ( tab 2 ). A concept plan, prepared by a firm of architects " in conjunction with [PWA] on behalf of Sandy Shores Development Pty Ltd ", was attached, and the Department was respectfully requested to consider the proposal as a project to which Part 3A might be applied.
In a departmental minute, signed off by Mr Haddad as Director-General (hereafter ' DG ') on 25 November 2005 ( tab 3 ), the opinion expressed on behalf of the Minister was that the development described was appropriate for Part 3A. The departmental assessment records that PWA had written to the Department " on behalf of Sandy Shores Development Pty Ltd (the applicant )", and that the proposed development is " development of a kind that is described in clause 1(1)(i) Schedule 2" of the 2005 SEPP and , "is a project to which Part 3A applies", as it falls "within the coastal zone" and "involves a subdivision of land in a residential zone into more than 25 lots" (i.e. 300). The minute notes that the Minister delegated his function to form opinions under cl 6 of the 2005 SEPP to the DG, pursuant to a delegation instrument dated 31 October 2005. The " Minister's opinion ", was formally recorded ( tab 4 ), referring simply to " a proposal ... generally as described in a letter dated 4 November 2005 " from PWA to the Department.
The Department wrote to Mr Hill on 13 December 2005 ( tab 5 ), advising of the DG's decision of 25 November 2005 that Part 3A would apply to the project. The letter invited PWA to apply for the approval of the Minister to carry out the project. Mr Hill, having indicated that PWA would submit a concept plan, was informed by this letter that the Minister would consider that request after the application has been lodged, clearly stating the intention to submit a concept plan. The preliminary EA should address all the information concerning/required for concept plans.
Mr Hill responded to Mr Haddad on 18 January 2006 ( tab 5A ), enclosing a completed major projects application form ( tab 6 ) signed by Charles Hill as " proponent ", on behalf of the " company/organisation/agency " nominated as " proponent ", PWA. It was accompanied by a " preliminary assessment ", said to be dated January 2006, and to have " been prepared having regard to the guidelines provided " ( tab 7 ). The application was received by the department on 19 January 2006 ( tab 6 , fol 9). A fee of $775 was paid and receipted ( tab 9 ). The cheque (at fol 8 in tab 5A) was drawn by Sandy Shores Developments Pty Ltd. The receipt refers to the proponent/contributor as Sandy Shores Development Pty Ltd, and the tax invoice correctly refers to the author of the cheque as Sandy Shores Developments Pty Ltd. The Owner's Consent section is signed by " J C Oliver " (fol 11). The estimated value of the project is $12M (fol 11). The " preliminary assessment " is stated to be for " Sandy Beach North Residential Development ", and to have been prepared by PWA specifically for " Sandy Shores Development Pty Ltd " (see fols 13-14). In a broadly expressed letter on the company's letterhead, dated 25 January 2006 ( tab 8 ), Mr John Oliver was nominated as its " appointed agent/representative ". He is described elsewhere (tab 14, fol 70) as the " project manager ".
Tab 10 is a Ministerial briefing paper regarding five major project applications and three concept plan approvals, including " Sandy Beach North " (for 295 lots). It was prepared by the Department on or before 27 September 2006 and noted/endorsed by Mr Haddad and Minister Sartor on 3 and 11 October 2006 respectively. The relevant authority was granted for the lodgement of concept plans under s 75M(1). At folio 53 (par 5.16) it was noted that the subject site was purchased by Mrs C M Hoskings and Ms L J Darby, not the second respondent, on 17 September 2004 , but the " proponent " is identified as " Planning Workshop for Sandy Shores Development ". It is noted that the site is " low lying, subject to flooding and contains EECs ".
The Department wrote to Mr Hill on 20 October 2006 ( tab 11 ), enclosing the DGRs in respect of " your application for Concept Plan approval ". The DGRs had been prepared on the basis of the information so far provided, and pursuant to s 75F(3). The DGRs (fol 65 of tab 11) are dated 20 October 2006, they identify the "proponent " as " Planning Workshop Australia ", and their expiry date is nominated as " two (2) years from the date of issue " (which would be 20 October 2008). The key issues are identified over some three pages, and the deemed refusal period is notified (fol 68) as " 60 days ". Attachment 2 sets out " plans and documents " to accompany the project approval application, and attachment 3 some " technical and policy guidelines ".
The law firm then known as Deacons wrote to the DG on 21 September 2007 ( tab 12 ), enclosing what it said was the concept plan application, and an EA dated September 2007. A cheque was enclosed in the sum of $22,000 by way of lodgement fee, calculated on the basis of the number of hectares to be subdivided.
Nineteen appendices to that EA as submitted in September 2007 are listed in a table (added to the bundle before the court as fol 65A), and a CD (not before the court) was apparently also provided.
The letter was noted as " received" on 24 September 2007 , and there is a handwritten note on it indicating that someone in the Department spoke on that day with the Deacons partner and " told her that they should have submitted a draft ... (unintelligible). She knows we are now reviewing the EA ".
These documents (at tab 12) were relied upon by all three respondents as the relevant assessment for the purposes of asserting its timely submission, contrary to the first ground of the Council's challenge. The respondents submit that September 2007 falls well within the nominated expiry date of the DGRs (20 October 2008).
Following the addition to the bundle of fol 65A:
(1) Exhibit S1 was tendered by the second respondent, being a full copy of the application/assessment document plus two large binders containing all the appendices (T29.6.11, p28, L46), and
(2) Exhibit C2 was tendered by the applicant Council, being photocopies of the departmental file covers on the two binders of appendices, endorsed in handwriting " draft EA ". (Dr Griffiths, senior counsel for the Council, said those copies were " sufficient for our purposes " (T29.6.11, p29, L3)).
The application/assessment in Exhibit S1 makes clear from the outset (see the cover page, the certification and the executive summary) that it was prepared, and, one can assume, submitted, on behalf of Sandy Shores Development Pty Ltd. It says (p3) that the 49ha site will be developed " in four precincts " - 20.8ha of " built form ", with 20.2ha " retained for wetland [etc] ... designated as an Environmental Protection Area ", and 8ha retained as a " buffer area " of " vegetated Open Space " and emergency access between the two larger precincts.
An email sent by the Department's contract planner, Ray Lawlor, to Mr Hill and others on 10 October 2007 ( tab 13 ), suggested a meeting to " discuss the draft EA " submitted on 24 September 2007. It goes on to comment:
...at this stage we have treated the EA only as a draft submission and have not undertaken a formal adequacy test pursuant to section 75H of the EP&A Act. It is not intended that the merits of the proposed subdivision will be discussed at the meeting but rather the formatting and general content of the EA. For this purpose I have attached some comments. While these are fairly detailed many will relate to a proper editing of the document and a review against the Director General's Requirements. Also there are still application fees outstanding related to clause 245D of the EP&A Regulation and the subdivision construction works which we can discuss at the meeting.
There is a handwritten endorsement on the email at tab 13, noting that the proposed meeting was held on 26 October 2007 . The attachment to the email comprised four pages of comments, and Council relies on this email as clearly indicating that the Department's position, at least at that time, was that only a draft, and not an appropriate assessment document, had been submitted in September 2007.
Tab 14 contains PWA's and the Department's notes of the meeting held on 26 October 2007. The Department was represented by Messrs Lawlor and Tomkins, and the unnamed " applicant " by Messrs Oliver, Holland, Thomas, Power and Hill. Again, Mr Lawlor stated that the application " was being treated as a draft to provide the applicants with an opportunity to amend the report ". It was noted that the alternative was to treat the application formally and write a letter advising that it was inadequate in its current form. The meeting discussed the Department's comments contained in the email. The notes (fols 66-69) indicate an extensive discussion about all aspects of the matter. Mr Power was noted to have some concerns about the adequacy and accuracy of the " Sainty report ", and did not think " Sainty " should be involved.
Sainty & Associates were independent environmental consultants engaged by the Department, following site inspections with Council on 28 June 2006, to look at this and other similar proposals on environmentally sensitive coastal land in the Coffs Harbour local government area. Sainty reported in September 2006 that development areas should be restricted to 8ha of the 38ha currently zoned residential. The Sainty engagement and report were reported on in some detail in the Ministerial briefing paper (see [35] above, and tab 10, fols 48-51).
I note here the provisions of s 75H and s 75N (see [17] and [20] above). Section 75H deals with " adequacy ", and s 75N applies s 75H to concept plans. The DG has to " accept " an applicant's EA and put it on exhibition. Clearly, the date of " acceptanc e" of the EA by the DG is very significant. As Dr Griffiths says (T28.6.11, p11, LL29-31) "the [Department has] been sensibly cautious because it doesn't want to engage the obligation to exhibit where you didn't have a EA in the proper sense ".
A further meeting took place between PWA, the company, and the Department, to discuss the 2007 EA, on 29 January 2008 ( tab 15 ).
Tab 16 contains a further background note or departmental briefing paper, prepared for the DG and dated 13 February 2008 . It notes:
...an early draft of the Environmental Assessment was received by the Department in September 2007. Advice was provided to the proponent identifying a number of inadequacies with the documentation including insufficient detail on the subdivision design and layout, coastal hazards, flora and fauna, Aboriginal heritage, traffic management and infrastructure. The document also contained numerous spelling/typographical errors. The Department has held discussions with the proponent in relation to these matters, most recently at a meeting on 29 January 2008.
The document at tab 16 goes on to note that the Department expected a revised EA to be submitted by mid to late February 2008 , reflecting the time taken for the proponent to respond to the matters raised by the Department, as well as completing the necessary community consultation procedures, with respect to Aboriginal heritage assessment, in accordance with Department of Environment and Climate Change guidelines.
In the background section of the document at tab 16 (at fol 72), the proponent is nominated as " Planning Workshop on behalf of Sandy Shores Development Pty Ltd ". The area of the site and its zonings were noted, as were environmental and ecological constraints, including Endangered Ecological Communities ('EEC's) and flooding concerns. In February and March 2006 , Council had exhibited a draft Local Environmental Plan ('LEP') proposing to rezone most of the site Environmental Protection 7A , which, in conjunction with Development Control Plan ('DCP') controls, " would restrict development of the site to a maximum of 35 dwellings ". Council had deferred finalisation of the rezoning pending the decision on the subject Part 3A application, but considers the Sandy Shores proposal, whatever the final number of lots proposed (140 to 295), to be " unacceptably large and out of kilter with the draft rezoning " (T28.6.11, p12, LL24-25).
It is noted that the draft EA provided for site development beyond the potential areas identified by the Sainty report, including the western part of the site, which is identified as an EEC. Sainty had been asked to review, on behalf of the Department, the proponent's ecological reports and its justifications for variations from the identified potential development areas, and was expected to report by late February 2008.
The report concludes with a notation that the DGRs " (issued on 20 October 2006) required the subdivision to be consistent with the areas of development potential identified within the Sainty Report or otherwise provide suitable justification and sound technical arguments for any departure ". Folios 73-75 include plans of the developable area recommended by Sainty, and the development areas proposed by the proponent.
On or about 20 February 2008 a draft letter was prepared in the Department, but not sent ( tab 15 ). It was to go to Mr Power at PWA from Heather Warton, Director Coastal Assessments in the Department, with a copy to Mr Oliver. It referred to the meeting held on 29 January 2008, attended by Mr Power and " the proponents, John Oliver and Peter Darby for Sandy Shores Pty Ltd ". It noted that the DG was considering revising the DGRs to pick up matters such as climate change impacts. (I note here that the DG has statutory power to modify them during the course of their life). The handwritten endorsement on the draft letter stated " not sent. Advice to be incorporated as amended/supplementary DGRs" .
The Department's Executive Director Major Project Assessments, Mr Wilson, wrote to Mr Power of PWA on 28 February 2008 ( tab 17 ). A copy of the letter is footnoted as being sent to " John Oliver, Sandy Shores Development Pty Ltd" . It is not really similar to the draft letter at folio 71 in tab 15. It noted (fol 75) that potential climate change and sea level rise impacts are of critical importance to the assessment of the project and the concept plan. Since the DGRs were issued, further information had been released, and an assessment of climate change impacts to the year 2100 is required in relation to this proposal. The DG had, therefore, issued " supplementary " DGRs, and a copy was attached to the letter. Assuming folio 76 is the extent of the requirements, there is only one supplementary matter raised, being added to the requirements as par 7.7, in the following terms:
A risk management assessment of climate change impacts to the year 2100, is to be undertaken using the latest available information from the International Panel on Climate change (IPCC), Department of Environment and Climate Change (DECC) and the CSIRO. This should include sensitivity analyses for low level, mid range and high level ocean impacts as set out in relevant DECC Guideline (Floodplain Risk Management Guideline: Practical Consideration of Climate Change, 2007).
Dr Griffiths noted at the hearing (T28.6.11, p11, LL35-40), that the " supplementary " DGRs were issued both during the currency of the original DGRs, and some eight months prior to their expiry. In his written submissions (par 16) he said:
There is no power to issue 'supplementary' DGRs in the EP&A Act. Rather sub-ss 75F(2) and (3) requires the Director-General to prepare environmental assessment requirements '[w]hen an application is made for the Minister's approval for a project' and 'notify the proponent of the environmental assessment requirements'. Sub-cl (3) provides that the Director-General 'may modify those requirements by further notice to the proponent' (emphasis added). This was apparently the power relied upon to 'issue' the 'supplementary requirements'. The so-called 'supplementary requirements' took effect as a modification of the DGRs rather than a fresh issue of additional DGRs .
Tab 18 (fol 76A) records that Mr Power, sometime prior to 24 September 2008 , when the two-year life of the original requirements would appear to be close to expiry, had made a "recent enquiry about the status " of the DGRs. A Departmental officer, Joanna Bakopanos, responded that " DGRs do not legally expire, however the Director General may modify these requirements at any time. In this instance it is not considered necessary to further modify the DGRs". She went on to provide a number of " factors " for that conclusion, including the draft EA submitted in September 2007, the preliminary advice provided to him by the Department about it, the supplementary DGRs issued on 28 February 2008, and Mr Power's advice that he expected a revised EA to be " submitted shortly ". Ms Bakopanos urged Mr Power to ensure that the revised EA is prepared having regard to " recent policy guidelines, for example Planning for Bushfire Protection 2006 ". She attached a copy of the most recent list of guidelines which she thought may be of assistance. (No list is included in the exhibit).
Dr Griffiths submits that the advice Bakopanos gave Power, that the DGRs do not expire, was wrong, as a matter of law. It is a question squarely before the court in the present matter. Dr Griffiths acknowledged that the DG can modify his requirements - he is expressly empowered to do so under s75F(3) - but that the modification must be made only during the currency of the requirements sought to be modified. Section 75N picks up s 75F (see T28.6.11, pp12-13).
The two year nominated life of the original DGRs expired on 20 October 2008 .
In late 2008, PWA was incorporated into Worley Parsons Resources & Energy. Tab 19 contains (fol 77) a letter dated 22 December 2008 which Mr Power, as the principal heritage and statutory planner of Worley Parsons, wrote to the major project assessment section of the Department, lodging a copy of the EA for the concept plan application for the Sandy Shores Project at Sandy Beach. The covering letter clearly nominated the " applicant " as " Sandy Shores Development Pty Ltd ". Mr Power asked the Department to get back to him " at the completion of the Director-General's adequacy assessment of the [EA] under s75H ". Mr Lawlor in the Department confirmed the receipt of that assessment on 22 December 2008 in these terms:
I confirm receipt of the Environmental Assessment for the Concept Plan Application - Residential Subdivision for initial submission prior to submission for an 'adequacy test' ...
22 December 2008 was two months after the date on which the DGRs are said to have expired (20 October 2008).
On or about 9 or 12 January 2009 a revised EA was submitted to the Department ( tab 20 ).
Mr Wilson wrote to Mr Power on 4 February 2009 ( tab 21 ), referring to lodgement of the EA " on 12 January 2009 ". (It would appear that this letter and schedule of matters were then addressed two weeks before the document exhibited at tab 20 was produced and exhibited).The letter advises that the EA document so submitted, when reviewed against the requirements, passes the " adequacy test ". The letter goes on:
Notwithstanding this, the attachment to this letter lists a number of matters regarding the EA. The proponent will need to address outstanding editorial issues before exhibition of the EA can proceed and also ensure Lot 497 ... is included in the concept plan description. The proponent may also wish to address the other issues listed in the attachment in finalising the EA.
In assessing the adequacy of the EA the Department has also relied upon advice from the Department of Environmental (sic) and Climate Change (DECC), a copy of which is enclosed for your information. Issues raised by the DECC are primarily merit considerations, which the proponent may choose to address at this stage as it is probable that they will again be raised following the exhibition of the EA.
The EA was also referred to the Roads and Traffic Authority (RTA). No comments have been received at this stage, but will be forwarded separately to you when received. Any additional comments would not form part of this formal adequacy assessment.
The attachment to the letter was a schedule of some four pages (fols 213-216), listing issues and requirements. One is a need to reframe the draft statement of commitments for a range of reasons. A list of editorial issues appears on folio 216. In summary, whatever was submitted on 12 January had been accepted as adequate for the purposes of s 75H, subject to editorial changes that will need to be made " before it will be exhibited " (T28.6.11, p15, L22).
The EA in tab 20 , submitted by PWA on behalf of its " client ", Sandy Shores Development Pty Ltd (fols 78-80 and 87), shows (at folio 79) its final revision date as 20 February 2009 . The previous " final " date was 22 December 2008 , and the certification by Mr Power and two other PWA officers, is dated 17 March 2009 , which is the date imprinted by the word processor on the foot of every page of the document (being fols 80-210). Mr Tomasetti, senior counsel for the second respondent, acknowledged that the tendered document was the " final revised ".
The conclusion to the document is a full page at tab 20, folio 210. The conclusion includes the following (emphasis in document):
The Concept Plan Application is consistent with the intentions of the State and Local Government planning framework for the Mid North Coast and will assist in supporting the economic growth and development of Coffs Harbour. The site is within the area identified in the State Government Mid North Coast Strategy as being appropriate for residential development.
The proposal is consistent with the intentions of Coffs Harbour City Council's Interim Settlement Strategy, and is consistent with the aims and objects of the Coffs Harbour Local Environmental Plan 2000 ['the Coffs Harbour LEP'] .
The conclusion goes on to note that as a Part 3A project, compliance with the LEP is not required, but, " [n]onetheless, the Concept Plan application complies with the aims and objectives of the LEP ". Half the site will be retained for environmental protection and open space resulting in a restoration of the presently degraded environment. The identified potential environmental impacts are able to be effectively ameliorated by the mitigation measures recommended within the various consultant reports that have informed this EA and are incorporated into the draft statement of commitments. " This EA concludes that the proposed Concept Plan is not likely to result in any significant adverse impacts ". The final paragraph of the conclusion of the report says " [i]t is therefore recommended that the application is determined by the granting of concept plan approval, and approval under Section 75P(1)(c) of the EP&A Act ".
Dr Griffiths said that the document placed in tab 20 of the bundle " was copied from the Department of Planning's website. This is the environmental assessment which was publicly exhibited " (T28.6.11, p14, LL22-24). He drew attention to folio 91 where the document notes that " this EA has been prepared to accompany the Concept Plan Application " pursuant to s75H, and then says " The EA has been prepared in accordance with Section 75F of the EP&A Act. It addressed the Director General's Requirements issued on 20 October 2006 and subsequent requirements issued 28 February 2008 relating to climate change considerations .... He deduces from the annotations that " this appears to be the final environmental assessment lodged on behalf of Sandy Shores Development Pty Limited and that the final environmental assessment doesn't come in until on or after 17 March 2009 " (T28.6.11, p13, LL33-36).
Dr Griffiths points out that concept plan approval occurs under s 75P(1)(b), whereas the proponent in the publicly exhibited document seeks an approval under s 75P(1)(c). He submits that this is an important distinction. Section 75O is the source of the power to approve a concept plan where the conditions in s 75O are met, and s 75P is an adjunct provision providing, in effect, that when giving an approval to the concept plan under s 75O, the Minister may make any, or any combination of, the determinations at (a), (b) and (c). As Dr Griffiths says (at T28.6.11, p15, LL5-8):
...you go to Pt 3A for the future, you go to Pt 4 or Pt 5 for the future, or you just go ahead without any further environmental assessment requirements, which is what the proponent in its terms was seeking in its report which was then the subject of public exhibition.
Tab 22 (fol 217) is the text of the advertisement of the exhibition of the EA. A photocopy of the actual advertisement appears at folio 218. It was approved on 27 March 2009 and the exhibition period advertised was from 1 April to 4 May 2009 . The " proponent " is clearly identified as " Sandy Shores Development Pty Ltd ".
Among the documents found under tab 25 is a letter sent by Mr Wilson to Mr Power on 25 May 2009 , noting that, following public exhibition of the EA, the Department " has some key issues regarding the proposal ". They were addressed in a three page schedule (fols 250-252). After drawing attention to the attachment, the letter says:
The Department is of the view that the current proposal has failed to justify development beyond that recommended by Sainty (2006). The cumulative effect of the public and agency issues raised in conjunction with consideration of issues raised by the Department will result in the need for a significant redesign of the proposal. The redesign needs to be cognisant of the unique constraints of the site and must rigorously apply all of the principles of ecologically sustainable development. Various concerns have also been raised regarding the veracity of sections of the EA for the proposal. The redesign will need to be well justified and supported by evidence that addresses the concerns raised in the attachment and in other submissions.
The letter concludes with the suggestion of a meeting involving Mr Alan Bright from the Department.
Maddocks Lawyers, then acting for " the applicant " Sandy Shores Development Pty Ltd, wrote to Mr Wilson on 22 April 2010 ( tab 22A ), seeking to confirm that draft amendment No.29 to the Coffs Harbour LEP will " remain on hold and will not be exhibited " pending the outcome of the Part 3A determination. The letter stated that the company would prepare a response to the issues raised in the letter dated 25 May 2009. Maddocks suggested that all correspondence be directed to " the Project Management Team C/o Bill Yassine, Director, Sydney NSW Property Consultants", in Phillip Street Sydney. There is no registered corporation by that name, so the court has concluded that, when the interests promoting the subject proposal retained Mr Yassine as a consultant, he used it as a trading name.
Mr Yassine sent an email dated 18 June 2010 ( tab 23 ) to the Department, with a copy to Mr Bright, acknowledging receipt of a letter dated 1 June 2010 and enclosing a reply indicating that " the entire proposal " is the subject of " a comprehensive analysis and review" . Sydney NSW Property Consultants has " engaged independent experts to review and report on all matters set out in...[the] letter dated 25 May 2009 ". Mr Yassine sought an extension of time for the response to mid-July 2010. The letter goes on to ask that " all communications " be directed to Sydney NSW Property Consultants in respect of this matter (fol 221).
On 24 June 2010 ( tab 24 , fol 221), Mr Bright wrote to Mr Yassine requiring the submission of the " Preferred Project Report (PPR)... by mid-July 2010 at the latest " . Tab 25 contains the " Preferred Project Report " (fols 243A-243Z0), authored by Willana Associates Pty Ltd ('Willana'), and dated August 2010 , with the certification by a Mr Harding of the company dated 26 August 2010. The certificate says (at fol 243C):
This document has been prepared for Sandy Shores Developments by Willana Associates Pty Ltd to respond to The Department of Planning's response to the Environmental Assessment of this major project.
Within tab 25, one finds (at fol 249), the Wilson to Power letter dated 25 May 2009, to which references have already been made above ([71]). However, at fols 244-247, still within tab 25, there are incomplete copies of some letters dated October 2010 . Folio 244 is the first page of a letter from Willana to the Department dated 27 October 2010. It refers to " recent meetings regarding the proposed development for Sandy Shores Developments ". The tendered page goes on for two paragraphs on " Land Dedication/Buffers And Environmental Outcomes ". It indicates that " the client " is prepared to amend the scheme to allow for further retention of some areas of the site desirable to keep in public ownership. An offset plan has been prepared indicating an area of 5.5-6ha that the applicant is prepared to dedicate to the State government. This will delete three allotments in the eastern precinct on the western side of the access road. Folio 245 is, similarly, an incomplete extract from a letter from Cardno dated 25 October 2010 to " Sandy Shores Development " c/o Sydney NSW Property Consultants, addressed to Mr Yassine. Folio 246 appears to be page three of that Cardno letter, introducing an annexure ('A') entitled " 45 Hearns Lake Road ", and at folio 247 there is a schematic map. These October pages were described by Ms Irish, Counsel for the first and third respondents, as an " addendum " to the August Willana report, so they were placed in the bundle, between the main report and the annexures to it.
The annexures to the Willana report appear in tab 25 at fols 248-350. Apart from the May 2009 letter, they include Appendix 'C' (fols 258-325), an ecological report by Whelans Insites Development Consultants, dated 9 August 2010. It notes (at fol 264) that " the site is currently the subject of a Part 3A application by Sandy Shores Developments ... ". At folio 298 is a letter to Sandy Shores Developments c/o Yassine, from Cardno Lawson Treloar, who say they have been engaged by Sandy Shores Development Pty Ltd to review various reports.
Peter Darby, in his capacity as a director of the respondent company, wrote to the Department on 2 November 2010 ( tab 26 ) indicating that as the owner of three nominated lots, the company has " authorised Planning Workshop Australia [at] first instance, and furthermore authorise Sydney NSW Property Consultants, to liaise and negotiate with the Department of Planning in regard to our Application ..." (fol 351).
On 22-23 November 2010 , there was an email exchange ( tab 26A , fols 352-356), between Mr Withington from the Department and Mark Hannon at the Council. On 22 November 2010, Withington indicated that the Department was finalising its assessment of the concept plan application, and further that the terms of approval under consideration " will make Council the consent authority for future development on the site ". Mr Hannon replied later that day seeking further information on the draft assessment of the application and the statement of commitments. Inter alia , he said " ...the draft determination provides for development that differs vastly from that planned for under Council's adopted DCP and its draft LEP Amendment for this urban release area". In seeking an extension of time, Mr Hannon comments "the Department will also appreciate that this is not a conventional concept plan project".
Later again on 22 November 2010, Mr Withington replied to Mr Hannon declining to send some of the material he had sought, and stating that he was unable to grant an extension of time to review the draft terms of approval. Twenty-four hours later, Mr Hannon reverted to Mr Withington following some discussions and asked for clarification as to why the approval would make Council a consent authority when something in excess of 100 lots is clearly a Part 3A project. The last email in the chain came later on 23 November 2010, with Withington saying to Hannon that the Department would be happy to hear Council's views on its role in determination of future applications for the subject site (fol 352).
The draft of the " concept approval ", which was said, in that November email exchange, to have been shown to Council , is found in tab 27 (fols 357-368). This draft must be compared with the " final " approval at tab 31 . The draft at tab 27 proposed that the Minister's determination be expressed in the following terms:
I determine:
(a) Pursuant to section 75O of the Environmental Planning and Assessment Act 1979 (the Act) to approve the concept plan referred to in Schedule 1, subject to the terms of approval and modifications in Schedule 2 and the proponent's Statement of Commitments in Schedule 3; and
(b) Pursuant to section 75P(1)(b) of the Act, that all future development shall be subject to Part 4 (or Part 5) of the Act.
The modification and further assessment requirements are required to:
Encourage the orderly future development of the site;
Ensure adequate mitigation of environmental impacts of future development; and
Ensure protection and restoration of threatened species and their habitat.
That draft approval at tab 27 nominated (fol 357), and defined (fol 358), the proponent as " Sydney NSW Property Consultants Pty Ltd ", and I also note that, in Part C of Schedule 2 of the draft, entitled " Further environmental assessment requirements ", reference was made (fol 362) to s 75P(2)(c) (see [20] above).
The draft elicited a detailed reply from the Council ( tab 28 ), dated 26 November 2010 .
Council expressed its disappointment and surprise at the draft determination having regard to Council's adopted planning controls for the site and other development sites in the Hearne's Lake/Sandy Beach Urban Development Area - approximately 200 lots would result, compared with 35, and the Department had previously expressed its support for Council's controls. The letter of 26 November 2010 forwarded copies of documents, including correspondence dating back to 31 March 2005, regarding the controls for that area, and continued:
The DCP and amending LEP process for this urban release area was highly contentious with significant community, agency and stakeholder group interest. The process involved a number of community forums, agency meetings and extension of exhibition periods to ensure transparency of process.
Some 134 public and agency submissions had been received by Council as part of the DCP consultation process. Appendix 'A' to the letter is a Council paper (fols 372-381) on the DCP and developer contributions plan, and a copy of the DCP (fols 382-429). At folios 430-445 are the letters exchanged in 2005 between Council, Department and other agencies regarding the DCP.
The Council letter went on to point out (fol 369) that "[r]ecent consents for subdivisions in this release area determined by both the Minister and Council have conformed to the adopted planning controls. This determination does not conform to these controls ". The letter then dealt with the Department's engagement of Sainty & Associates Pty Ltd. The Council suggested that the September 2006 Sainty analysis endorsed a totally different and much reduced development footprint, to that supported by the State in the draft Approval. Council acknowledged that it had been consulted by the Department, but it was critical of the extent and quality of that consultation. The letter also enclosed an appendix of recommended changes and additional items for the Approval, but Council reaffirmed its non-endorsement of the suggested determination.
On the question of the Department's offer to make Council the consent authority for future developments on the site, the Council said (fol 371):
...having regard to the history, nature, complexity and the Department's knowledge of the proposal and also bearing in mind that the proposal (to be determined) exceeds 100 residential lots in the coastal zone Council cannot accede to this offer and requests that future applications be determined in the normal manner, as Part 3A matters, as provided for in SEPP (Major Development) 2005.
The letter concluded with requests that (1) consideration of the application be placed on hold pending discussions between the Department and Council staff, and (2) a copy of the assessment report be made available to Council for review and comment.
Among a series of appendices to the letter the court found appendix 'A' (fols 372-446), being Council's report on its adoption of a DCP and Development Contribution Plan for the Hearnes Bay/Sandy Beach area.
Appendix 'B' (fol 446) is a letter of 7 July 2006 from Mr Wilson in the Department to the General Manager of the Council. It concerned the original engagement of Sainty, and suggested that the Council not proceed with the amendment of its LEP until the Sainty study had been examined.
Appendix 'C' (fols 447ff) is a series of memos concerning key issues about the concept approval, all dated 24 November 2010 -biodiversity (fol 447-448); traffic (fol 449); flood levy; and buffer to Hearne's Lake (fol 450).
Appendix 'D' is a list of suggested improvements to the Concept Plan and it covers four pages (fols 451-454).
The Department's recommendation to the Minister dated 19 December 2010 , for approval of the Concept Plan, subject to some modifications ( tab 29 , fols 456-459), was accepted by the Minister on 20 December 2010 . The " proponent " is described in those documents as " Sydney NSW Property Consultants Pty Ltd ", and the subdivision is said to be for 280 lots, with an estimated project cost of $12M. Following the exhibition, the Department had received 62 submissions, including eight from public authorities, and 54 from the general public. 92% of those responses were opposed to the project, 3.7% supported it, and 3.7% expressed concerns, but did not object. The eight major issues of concern are listed. Council had expressed the view that the development should be restricted to a maximum of 35 dwellings. It maintained its opposition to the scale of the proposal, and suggested modifications, some of which were made.
The DG's EAR (s 75I) dated " December 2010 ", which was tagged to the briefing note in tab 29, is at tab 30 (fols 460-503). The Executive Summary (fol 462) speaks of the " concept plan application by Sydney NSW Property Consultants Pty Ltd (the proponent) to carry out a residential subdivision ...". In the EAR (s 3.6 at fol 470) the Department expresses its satisfaction, in accordance with s 75I, that the DGRs had been complied with. In the submission signed off by the Minister, the Department noted that it had not supported the proposal, and had focussed its attention on particularly sensitive issues which it dealt with through recommended terms of approval, by requiring further assessment at subdivision application stage, and by reduction in the scale of the development (see fol 459).
At s 5.8 of the EAR (on p24/fol 487), the Department summarised the impact on potential lot yield of the modifications it had recommended. They would require the removal of approximately 14 lots from the eastern side of Stage 1, all of Stage 2 (approximately 15 lots), and all of Stage 6 (approximately 45 lots). The relocation of an internal road to land outside the 7B zoned buffer to the highway, may require the removal of 6-8 lots from the western edges of Stages 4 and 5. If the impact of Stage 5 cannot be adequately offset and Stage 5 is not constructed, the report noted that this would reduce the yield by 60 lots. The result will be a subdivision capable of between 140 and 200 lots, still well in excess of the 35 favoured by the Council.
Under the heading entitled " Recommendation " at s 6 of the Report it states (on p25/fol 488):
This application seeks Concept Plan approval for a residential subdivision of 280 residential lots. The site has been identified as having considerable environmental constraints including the presence of endangered ecological communities, the impact of flooding compounded by the effects of climate change and sea level rise, and the possible presence of items of Aboriginal cultural significance.
These constraints need to be balanced against the fact that the site is identified as a 'Growth Area' in the Mid North Coast Regional strategy and the site's predominantly residential zoning under the Coffs Harbour LEP.
The Department recommends approval of a modified version of the concept plan, allowing for a subdivision of up to approximately 200 residential lots. This modified plan will provide for the retention and rehabilitation of large areas of the environmentally sensitive parts of the site, including the eastern side of the lake and the north western corner of the site. The construction of the perimeter roads to a height of RL 3.6m AHD so as to act as levies will take into account the anticipated impacts of climate change and sea level rise on the flooding of the site.
Matters identified as requiring further assessment as part of future development applications include the impact of the construction of Stage 5, the importance of a site of potential aboriginal archaeological deposit (PAD 1), stormwater and groundwater management, and ensuring that water quality control devices are located in such a way as to minimise impact on environmentally sensitive areas.
At Appendix 'A' to this EAR (tab 30, at fol 489), attention is drawn to the EA on the website. Appendix 'B' (at fol 490) summarises the public submissions (fols 490-491). At Appendix 'C', one is referred to the website to see the proponent's response to those submissions (fol 492). Appendix 'D' (commencing at fol 493) contains a consideration of environmental planning instruments. Appendix 'E' (fol 496-502) is the statement of commitments, a step envisaged by the legislation whereby the proponent makes commitments to do various things often reflecting the preferred project report, and often to seek to address concerns expressed by members of the public, or by public authorities or agencies, troubled about certain aspects of the proposal (see T28.06.11, p20, LL29-36).
The following exchange occurred in court after a discussion of the EAR's recommendation (tab 30, fol 488, [96] above - see T28.6.11, pp18-19, L43ff):
HIS HONOUR: Is it your case that the council wrote a balanced letter but the reports don't report that to the minister?
GRIFFITHS: Only in respect of failure to address expiration of the DGRs and that the EA post dated the DGRs. In other respects we don't quibble about the contents of the report--
HIS HONOUR: I just noticed on a quick look through this document it doesn't appear to record that the council doesn't want anything to do with the future developments.
GRIFFITHS: No, that's certainly not drawn--
HIS HONOUR: Which is not the issue of the day when this report is made but might be the issue of today, that's all.
GRIFFITHS: It is, indeed it is, your Honour. We don't say that that was a mandatory relevant consideration but it's an important step in understanding just how, through the eyes of a member of the public, the terms of that concept approval are, because of the confusion, the utter confusion between the two statements that I've drawn your Honour's attention to and that I'll come back to and address later. That of course goes to ground 2.
HIS HONOUR: The outcome of the process is that a proposal - leave aside the niceties of who lodged it - the proposal was originally for 300 lots, the council says no it's much too much, we prefer 35, you end up with somewhere between 140 and 200.
GRIFFITHS: That's right, that's correct.
HIS HONOUR: So some of the council's concerns are inbuilt in that decision, or some of the council's reluctance is.
GRIFFITHS: Yes, to the extent that it's a reduction it's obviously perhaps less objectionable but the council still was expressing its objection to the draft terms of approval representing a modified approval--
HIS HONOUR: On the basis of scale.
GRIFFITHS: On the basis of scale and that was maintained throughout. ...
Dr Griffiths pointed out (at T28.6.11, p18) that nowhere in the exhibited material, the DG's EAR, or the proponent's EA, is any reference made to the expiry of the DGRs. Dr Griffiths says (at T28.6.11, p18, LL25-29):
... ground 1 has got two elements to it, lack of power to take various steps where the DGRs have expired, October 2008, and alternatively failure to draw the minister's attention to a mandatory relevant consideration, namely that the EA post-dates the expiry of the DGRs.
Dr Griffiths submitted that the errors complained of are jurisdictional errors. He did not complain that the Council's objection was not properly conveyed, but that the DG did fail to communicate to the Minister that the requirements had expired and that the EA post-dated that expiry. The Approval is beyond power because the statutory provisions relied upon as the source for what is being done, do not authorise it.
Under s 75X(2) (extracted at [23] above), the DG has a statutory obligation to make certain documents under Part 3A publicly available. I note in particular sub-paragraph (e), which requires disclosure of any application for approval of concept plans.
Tab 31 (fols 504-512) contains the Minister's Concept Plan Approval at the heart of these proceedings. It was signed by the Minister on 20 December 2010 , and must be compared with the draft of it, which appeared at tab 27 (see [81] above). In final form it is in the following terms:
I determine:
(a) Pursuant to section 75O of the Environmental Planning and Assessment Act 1979 (the Act) to approve the concept plan referred to in Schedule 1, subject to the terms of approval and modifications in Schedule 2 and the proponent's Statement of Commitments in Schedule 3; and
(b) Pursuant to section 75P(1)(b) of the Act, that approval to carry out the project shall be subject to Part 3A of the Act.
75 Clearly, the power to impose conditions on an approval under Part 3A is wide. There is no warrant to read that power down by imposing the limitation argued by Ulan that parameters of any adjustment to the Project to meet any outcome or objective specified, must also be specified.
76 In these circumstances, the failure of Condition 29 to specify the permissible parameters for adjustment of the scale of mining operations does not cause the Condition to be outside the class of conditions which s 75J permits.
77 Moreover, Ulan's argument that without such specification of parameters, there is legally unacceptable uncertainty, is not established. Questions of degree are always involved in determining whether a condition is sufficiently uncertain so as to be outside power: Transport Action Group Against Motorways v Roads and Traffic Authority (1999) 46 NSWLR 598 at 629 [117].
78 Retention of practical flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme...
79 In this case, leaving a choice of the means by which the outcome or objective of ensuring sufficient water for all stages of the project is to be met, to the proponent, including the nature and extent of adjustments that should be made, cannot be said to be outside the statutory scheme of Part 3A of the Act and in particular the power under s 75J to grant approval subject to conditions.
80 The scale of the projects subject to approval under Part 3A, which are often complex, extensive and multi-stage projects, make the retention of such flexibility appropriate and inevitable, a point also made in relation to other large scale projects under Part 5 of the Act (see Transport Action Group Against Motorways v Roads and Traffic Authority (1999) 46 NSWLR 598 at 630 [124] - 631 [125]) and under Part 4 (see Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 292 [54]).
The second respondent identified (par 58) the " relevant question " in the present matter as being: " whether the determination falls outside of the power in ss.75O and 75P ". The court should recognise that " the decision contains two typographical errors or simple mistakes ", and, " rather than assuming that the Minister has misunderstood his power or had regard to irrelevant considerations ", the court should accept (par 62) that " not all mistakes affect the exercise of power or the validity of an administrative decision ": Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 64 WN (NSW) 107, 47 SR (NSW) 416, per Jordan CJ at 109 and 420.
Paragraph (b) of the Approval ought to have referred to s 75P(1)(a), in the second respondent's submission, and that would be consistent with par (b) itself. To make this submission good, the second respondent took the court to the following statement in Auburn Municipal Council v Szabo & Anor (1971) 67 LGRA 427 (' Szabo '), where Hope J (as His Honour then was) stated (at 433-434):
Before going to the consent of 1953, I think it is convenient first to consider the effect of the consent in 1958. That consent on its face simply approved "additions" in a context where there was an existing building which had been the subject of an earlier consent. The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. ... In determining what a council has approved, one primarily looks at the document constituting the approval, and construes it...it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval.
(See also Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876; (2008) 162 LGERA 322 (' Watson '), per Biscoe AJ at [389]).
As Kirby J said, in a separate judgment concurring with the majority, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (' Liang ') [1996] HCA 6; (1996) 185 CLR 259 (at 291): " i t is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law ".
The second respondent submitted that the error in Part C, Schedule 2 of the Approval should also be treated in the same way as the error in par (b): " [t]he important part of the approval is not so much the identification of the section or subsection, it's the environmental assessment requirements the minister is importantly laying down " (T29.6.11, p22, LL22-24), and the error was " consistent only with (b) being in error and it should be [a] reference to (a) " (T29.6.11, p23, L40). Conditions C1, C10(1), C11 and C13 would have been unnecessary if they were to be construed so as to suggest that future development was to be determined in accordance with Part 4 of the EPA Act . Clearly it was the Minister's intention to have future development determined in accordance with Part 3A .
Finding on Ground 2
I accept the submissions of the respondents that the errors, if any, were clerical in character, and that their effect should not be to invalidate the Minister's Approval, which should be read, as at the date it was granted, as requiring future works to be determined under Part 3A: Szabo, Watson , and Liang . The reference to s 75P(1)(b) in par (b) of the Approval and the reference to s 75P(2)(c) in Part C of Schedule 2 should both be read as references to the clearly relevant and applicable provisions in s 75P, namely s 75P(1)(a), or to the section generally.
As Pain J found in Pittwater Council v Minister for Planning ("Pittwater") [2011] NSWLEC 162, the appropriate principles to apply are those laid down in Ulan , which Her Honour set out (at [45]). As Her Honour noted (at [51]) some lack of finality is inherent in the notion of a concept plan. Dr Griffiths failed to demonstrate that, if the Approval were to fail the certainty test in Ulan , the condition was beyond the power conferred on the Minister by the EPA Act . The Approval, on the other hand, can be easily given its intended practical effect , by paying appropriate attention to s 75P to avoid uncertainty. In terms of public policy considerations, the court is satisfied that those concerned in, or affected by, the Approval, would have clearly understood the intention and practical effect of it, and would have regard to the clearly relevant details of the statutory provisions.
Ground 3 - to whom or what was the Approval granted?
The final ground of challenge put forward by the applicant to demonstrate that the Approval is invalid was that the Approval was not granted to a legal entity. Indeed, as I noted in [8](3), Dr Griffiths says it was granted to a " phantom ".
Section 75O envisages that " the proponent " ([12]-[15] above) makes an application for the Approval of a Part 3A concept plan for a project, and the Minister, after a report by the DG, " may give or refuse to give approval ". The applicant submitted (par 72) that the application must identify a legal entity as the proponent.
In this case the Approval identified " the proponent " as " Sydney NSW Property Consultants Pty Ltd " and defined " the proponent " as " Sydney NSW Property Consultants Pty Ltd or any party acting upon this approval" ([103] above). The pleadings confirm agreement between Council and the second respondent that this named company is not a legal entity.
Dr Griffiths conceded that the identity or name of the proponent can change during the process, and that the proponent can act through an agent (see T28.6.11, p34, LL15-18), but he submitted that it is necessary for there to be a legal entity identified as proponent at any particular stage, especially the formal approval stage, if an approval granted under s 75O(1) is to be valid. He says (subs par 72) that the High Court's decision in Project Blue Sky Incorporated v Australian Broadcasting Authority [1998] HCA28; (1998) 194 CLR 355 requires the court to decide, as a matter of statutory construction, whether the legislature intended the identification of a legal entity as the proponent ' to be a precondition to the making of a valid concept plan approval ". He argues that many of the provisions in Part 3A (listed in par 74 of his subs) can be seen to require a legal entity as proponent, clearly distinguishable from any " person acting as agent for the proponent ", for example, in fulfilment of obligations in a " statement of commitments " (see ss 750(5) and 75J(5)).
Dr Griffiths also noted (1) that the DG had required Charles Hill to clearly identify the proponent, for the purposes of preparing the DGRs, and Hill identified PWA, in its capacity representative of the second respondent (see [31]-[36] above), (2) that some sections of the EPA Act , outside Part 3A (eg s 147), also required a proponent to be identifiable, and (3) (at par 81) that it is necessary for the proponent to be a legal person/entity in order to be capable of " holding and transferring the legal rights that constitute the project approval or concept plan approval ". Insofar as the Court of Appeal's decision in Currey might not support Dr Griffiths's argument on this ground, he submitted that it is irrelevant to this case as it involved Part 4 of the EPA Act , and was decided before Part 3A was introduced (see T28.06.11, p34, LL21-39).
In his oral submissions, Dr Griffiths referred the court to Craig J's decision in Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223; (2010) 177 LGERA 312 (' Betohuwisa '), to demonstrate that the EPA Act required a proponent to be a legal entity (see T28.6.11, p38, LL3-26). Craig J said in that case:
36 Although it may seem trite, it is nonetheless pertinent to observe that the process of making and assessing a development application, together with the process of appeal from the determination of a consent authority, are all creatures of the EPA Act ... . This observation is made to emphasise the fact that close attention to the statutory provisions is imperative in order to determine the entitlement of Betohuwisa to maintain its present appeal.
37 The term "applicant" is not defined in the EPA Act. Its meaning is therefore to be gleaned from its context within the Act ... . That context includes taking cognisance of the different bases upon which a person is qualified to make an application under the EPA Act.
On behalf of the State government respondents, Ms Irish submitted, in summary (subs par 73), that a proper construction of documents lodged over time with the DG, i.e. on and after 19 January 2006, would lead the court to conclude (1) that they were prepared by and/or for the second respondent, (2) that they clearly disclosed that the second respondent was the entity proposing to carry out the project, and (3) that, in any case, the Approval covered, in terms, " any party acting on this approval ".
On behalf of the second respondent, Mr Tomasetti submitted, in addition to what Ms Irish had put to the court, that if the true identity of a proponent is known, it does not change the nature of the Approval. He further stated (T29.6.11, p7, L48-p8, L3):
When you read the commitments you'll see that there's nothing personal in those commitments, personal to anybody. The legislation defines proponent as the person proposing to carry out the development, anybody proposing to carry out the development must carry it out subject to the proponents statement of commitments or the statement of commitments under condition A3 in sch 2.
He also submitted that, once development consent is granted, it operates in rem , rather than in personam . The determination of the identity of the proponent is a question of objective fact, and is not determined simply by reference to the Approval. PWA and Sydney NSW Property Consultants were always known to be acting as agents of the second respondent, who was the proponent for the purposes of the Approval. Later in his judgment in Betohuwisa , Craig J stated:
42 The Council accepts, in my view correctly, that an applicant for the purpose of s 97 of the EPA Act is not confined to the person or entity who signed the form of development application lodged with a consent authority. However, it submits that the class of persons to whom the broader notion of "applicant" extends is the principal or principals of the person or entity on whose behalf the application is made. Thus, where a development application is lodged by a town planner, architect, engineer or construction company with no beneficial interest in the overall development other than receipt of a fee for service or work undertaken, the Council recognises that if its determination of a development application is one that leads to dissatisfaction with the decision, the principal of the consultant applicant could appropriately lodge an appeal pursuant to s 97. The lodging of development applications with Councils by agents of the kind that I have described is not uncommon.
43 Substitution of a principal for an agent who has lodged a development application has been sanctioned by this Court ... . As the actions of an agent, acting within the scope of that agent's authority, are generally taken to be the actions of the principal, I see no reason why the principal should not be entitled to commence an appeal under s 97, notwithstanding that it was the agent of that principal who lodged the relevant development application with a consent authority.
The second respondent also made some submissions regarding whether a misdescription of the proponent in the Approval would be considered a jurisdictional error in the exercise of the Minister's power to grant Approval to the Concept Plan. It was submitted that the " real proponent " would be entitled to a declaration of its rights as proponent, and, flowing from that, the Minister would be subject to an order to compel him/her to correct the Approval. However, this would be necessary only so that the proponent could exercise its right of appeal pursuant to s 75W, and in no other way would it affect the Minister's power to grant an approval, or the proponent's ability to act on an approval, once it had been granted.
Finding on Ground 3
The evidence shows ([29]-[111]) that the subject proposal passed through many hands and many stages before the Approval issued. It also shows that the relevant review and approval authorities knew who owned the subject land, and which company planned to develop it, and acknowledged that those interests acted from time to time through various representatives - PWA (and its officers such as Charles Hill and Rob Power), Deacons (as that law firm was then known), John Oliver, Peter Darby, Worley Parsons (incorporating PWA from 2008), Maddocks (Lawyers), Bill Yassine, sometimes trading as " Sydney NSW Property Consultants ", perhaps also Willana, and now, in these present proceedings, Gadens Lawyers.
The respondents' submissions on this ground are clearly correct, and I accept them. The argument which prevailed, in my view correctly, in Betohuwisa, which concerned a development consent, should be accepted in respect of a concept plan approval. Clearly the second respondent was effectively the proponent, albeit that some of its documents and actions involved various entities, clearly acting as its agents.
The 2011 SEPP Amendment
Ms Irish submitted (par 66) that Ground 2(b) of the Council's challenge was " futile ", in light of the commencement of the 2011 SEPP amendment, which she said had two significant effects, namely that any development in the Approval (1) would require consent under Part 4 of the EPA Act , and (2) must be consistent with Conditions pars C1 to C14 of Part C of Schedule 2 of the Approval.
As earlier noted ([7] and [112]) the parties made written submissions on this issue after the conclusion of the hearing.
The dispute on this 2011 SEPP amendment concerns the transitional provisions contained in the new clause 17, inserted by it into the 2005 SEPP, in the following terms (emphasis added):
17 Transitional provisions-residential, commercial or retail projects and coastal subdivision
(1) This Policy continues to apply in respect of the following development for which environmental assessment requirements were notified to the proponent on or before 8 April 2011, as if Group 5 of Schedule 1 and clause 1 of Schedule 2 had not been repealed by State Environmental Planning Policy (Major Development) Amendment 2011:
(a) residential, commercial or retail development,
(b) coastal subdivision development.
Note . Environmental assessment requirements include requirements for an application for concept approval or project approval (see subclause (9)), so that this Policy (subject to subclauses (4) and (5)) continues to apply if environmental assessment requirements have been notified at either stage.
(2) For the purposes of subclause (1), environmental assessment requirements are taken to have been notified to a proponent if the Director-General accepted a document as an environmental assessment under clause 8J of the Environmental Planning and Assessment Regulation 2000 on or before 8 April 2011 without first adopting environmental assessment requirements under that clause.
(3) Except as provided by this clause, Part 3A of the Act continues to apply to development referred to in subclause (1), including (but not limited to) section 75W of the Act.
(4) This clause does not continue the application of this Policy to part of a project if environmental assessment requirements were not notified for the part of the project on or before 8 April 2011.
(5) This clause does not continue the application of this Policy to development that is a project under Part 3A of the Act if:
(a) a concept plan for the project is approved under that Part (whether before or after the commencement of this clause), and
(b) the only environmental assessment requirements that were notified for the development on or before 8 April 2011 were requirements for the purposes of the application for approval of the concept plan.
(6) The declaration of development as a project under Part 3A of the Act is revoked to the extent that this Policy ceases to apply to that development because of State Environmental Planning Policy (Major Development) Amendment 2011 or this clause.
(7) Despite any provision of any other environmental planning instrument, if any residential, commercial or retail development or coastal subdivision development the subject of an approval for a concept plan ceases to be a project under Part 3A of the Act on or after the commencement of this clause the following provisions apply in respect of the development :
(a) any development within the terms of the approval is taken to be development of a kind that may be carried out with development consent ,
(b) any development standard for the development that is within the terms of the approval has effect ,
(c) a consent authority must not grant consent for the whole or any part of the development unless it is satisfied that the development is generally consistent with the provisions of the approval ,
(d) a consent authority may grant consent for the whole or any part of the development without complying with any requirement under any other environmental planning instrument relating to a master plan.
(8) Subclause (7) does not have effect with respect to development to the extent that it is inconsistent with an order or direction given by the Minister under section 75P (2) of the Act relating to that development.
Note. Under section 75P (1) (b) of the Act the Minister may when approving a concept plan also determine that approval to carry out a project (or a stage of a project) is to be subject to the other provisions of the Act. Section 75P (2) sets out how those provisions (including Part 4) are to apply.
(9) In this clause:
coastal subdivision development means development:
(a) of a kind referred to in clause 1 of Schedule 2, as in force immediately before the commencement of State Environmental Planning Policy (Major Development) Amendment 2011, or
(b) that, immediately before that commencement, continued to be development referred to in clause 1 of Schedule 2 because of the operation of clause 16 (2) of this Policy.
environmental assessment requirements means:
(a) environmental assessment requirements notified under section 75F of the Act, or
(b) environmental assessment requirements notified under that section (as applied by section 75N of the Act), or
(c) environmental assessment requirements accepted by the Director-General as an environmental assessment requirement for a project or part of a project or concept plan under clause 8J of the Environmental Planning and Assessment Regulation 2000 .
Note. Environmental assessment requirements may also be made under section 75P (1) (a) of the Act but are not included in this definition for the purposes of this clause.
residential, commercial or retail development means development:
(a) of a kind referred to in Group 5 of Schedule 1, as in force immediately before the commencement of the State Environmental Planning Policy (Major Development) Amendment 2011, or
(b) that, immediately before that commencement, continued to be development referred to in Group 5 of Schedule 1 because of the operation of clause 16 (2) of this Policy.
The applicant Council pleaded its " uncertainty " challenge (Ground 2(b)) in par 32 of its APOC, in the following terms;
32.1 in its terms the Approval contains fundamental inconsistencies as to whether or not Part 3A applies to future approvals of the project subject to the Concept Plan Approval; and
32.2 those inconsistencies render uncertain both who is to determine the future environmental assessment requirements for the carrying out of the project subject to the Concept Plan Approval and on what statutory basis such requirements are to be determined; and
32.3 the inconsistencies render uncertain environmental assessment requirements applicable to future approvals of the project subject to the Concept Plan Approval.
In answer to par 32 of the APOC, the first respondent pleaded a number of matters in par 32 of its APOD, including discretion (in par f), and (in par e):
... that, following State Environmental Planning Policy (Major Development) Amendment 2011, the development the subject of the Concept Approval will require:
i. any development within the terms of the Concept Approval to be carried out with development consent under Part 4 of the Environmental Planning and Assessment Act 1979,
ii. such development to be consistent with Conditions C1. to C14. in Part C of Schedule 2 to the Concept Approval.
Dr Griffiths told the Court that Council did not agree with the Minister's construction of the SEPP amendment, and provided, in writing on 1 July 2011, the following explanation of Council's position (annexure 'A' to the first respondent's further submission, filed 4 July 2011):
1. The respondents reliance upon sub-clauses 17(5), (6) and (7) in the context of these proceedings is misconceived in suggesting that, by operation of those provisions the Council will be the consent authority for any future development. Rather, the applicant says that Part 3A will continue to apply on a proper construction of clause 17 as a whole.
2. Sub-clauses 17(5) and (7) expressly operate respectively by reference to "a concept plan for the project is approved" and there being "an approval for a concept plan". Those references are plainly to a valid and not an invalid approval. If the applicant is correct and the Minister's Concept Plan Approval is invalid those sub-clauses cannot be engaged because there is no valid approval upon which they can operate.
3. In the premises (i.e. assuming the Court declares the Concept Plan Approval invalid and sets it aside), sub-clauses 17(1) and (3) would apply. The effect of those provisions is that the SEPP (Major Development) 2005 will continue to apply, as will Part 3A.
4. Sub-clause 17(6) can have no application because it operates to revoke a Part 3A declaration only "to the extent that this Policy ceases to apply" because of the SEPP Amendment 2011 or clause 17 thereof. As noted above, if the Concept Plan Approval is declared invalid and set aside, sub-clause 17(1) would operate and provides that the SEPP continues to apply.
5. Accordingly, the applicant rejects the respondent's submission that there is no utility in granting the relief sought by the applicant. The granting of that relief will facilitate the operation of sub-clauses 17(1) and (3). It will then be a matter for the Minister to decide how the matter is to progress.
In that supplementary written submission, Ms Irish accepted pars 2-4 of the Council's document, but disagreed with par 1, noting that " Conditions C1 to C14 " are actually " further environmental assessment requirements " (as the heading on Part C describes them), and not " conditions " (in the usual sense of that term) for the purpose of s 75J(4).
Ms Irish submitted that Part 3A continues to have a limited role in this project, as defined by cl 17(3) of the amended SEPP, but if the Approval is upheld as valid, it must be read, since 13 May 2011, subject to the new cl 17, meaning that the Council will be the consent authority for any development within its terms, and such development would be carried out with a Part 4 development consent.
In its supplementary submission dated 5 July, the second respondent reiterated its reliance upon pars [49]-[52], [66], and [75]-[80] of Ulan (and not just [49] and [50] - see [158]-[163] above), as the correct approach to the question of " uncertainty ", and otherwise adopted Ms Irish's submissions.
The applicant submitted (Dr Griffiths's supplementary subs, filed 6 July, par 4) that the Court should have no regard to the 2011 SEPP amendments on the question of the intelligibility or certainty of the Approval. On Ulan , Council maintains its reliance on only pars [49]-[50] as stating the correct legal principles.
The applicant interpreted the respondents' supplementary submissions to be based on the following arguments, both of which it rejected:
(1) the amendments would allow the Minister to grant the Approval without the need to pay regard to those errors that would have otherwise led to invalidity of the Approval; and
(2) the amendments serve to " render the...Approval intelligible and make its operation certain "
In response to the first argument, the applicant submitted (supplementary subs, par 3) that " the mere possibility that a decision-maker will make the same decision as that impugned is not a proper ground for discretionary refusal of relief ".
In response to the second argument, the applicant submitted that, where a decision is infected by jurisdictional error, it has no legal effect, and the decision cannot stand. See Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2009) 209 CLR 597, at [53] per Gaudron and Gummow JJ:
"... a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act ."
Dr Griffiths relied on the following passage from the joint majority judgment in Liang (at 271-272), rather than the passage from Kirby J's judgment, in which His Honour agreed with the majority, and to which I referred earlier ([166]):
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases...It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
Dr Griffiths also took the Court to Winn v Director-General of National Parks and Wildlife, as cited in Ulan (see [162]-[163] above), and to Whittaker v Comcare (1998) 86 FCR 532, which was not a planning case, but was said to be relevant to the present matter because of the following extract from the judgment of the Full Federal Court (at 544 C/D):
The object of all interpretation is to discover that presumed intent (or purpose)... It is an intent to be gathered from the language used, in its context and with the aid of those materials to which the court can properly have recourse in seeking that intent. However, if it is not possible for the Court to be confident of the intent of the author, it is not, we think, open to the Court to invent, under the guise of interpretation, its own version of how it thinks the text might read. That is, in the present context, it is not open to this Court to devise a text of its own in place of the garbled original that reflects how the Court may think Comcare could have performed the duty cast on it by ... the Act.
On the basis of these authorities, Dr Griffiths submitted that the court needs to " ensure that the construction accommodates the fact that the concept approval is a document that is made publicly available on the website...and the public have a right to access it and the public have to understand it, not just the proponent, the council, the minister or the Director General " (T30.6.11, p9, LL2-5).
Finding on the SEPP amendment
The court does not need to determine this matter. Given that I am not satisfied that any of the applicant's challenges (including 2(b)) have been made good, the utility of granting the relief sought does not arise.
However, lest I be wrong in my decision on the challenges, I should express my view that Ms Irish's submissions on the effect of the 2011 SEPP amendment are to be preferred and should be accepted. The amendment effectively overtakes any uncertainty as to the identity of the decision-maker on future steps with the project.
Discretion
Both the Minister and the company pleaded discretion in their APOD (pars 32f and 27 respectively - see [186] above). The guidelines given for this court's exercise of its discretion to decline relief, by the Court of Appeal in Warringah Shire Council v Sedevcic (1987) 63 LGRA 361, per Kirby P (at 365-7), are well known, and need not be repeated in detail. See also Kirby P's subsequent discussion of those principles in ACR Trading Pty Ltd and anor v Fat-Sel Pty Ltd and anor (1987) 11 NSWLR 67, at 82-3.
The submissions made on discretion were brief, and the case for its exercise is fairly self-evident on the facts in this present matter. Any error or breach found in this case, given the subsequent repeal of Part 3A, is, as Mr Tomasetti said in his written submissions (at pars 80, 82 and 83), " minor and immaterial to the environmental assessment of the impact of the [proposed] development ".
Again, as with the 2011 SEPP amendment, the issue does not need to be determined, because of my view on the challenges themselves, but, if that view be wrong, I would be disposed to exercise the court's discretion, and decline relief.
Conclusion
In its amended summons the applicant Council sought/claimed declarations that the Minister's concept plan Approval, the DG's acceptance and publication of the company's environmental assessment, and the DG's report of 20 December 2010 were invalid (prayers 1, 1B and 1C), and sought orders that the Approval be set aside, and that the company be restrained from acting upon it (prayers 1A and 2).
I have concluded that none of those declarations or orders should be made.
Costs
In the event of its success, the applicant Council sought in the amended summons an order for its costs against all three respondents (prayer 3).
The second respondent has not yet put any submissions before the court on the question of costs, but Ms Irish, for the first and third respondents, submitted (T30.6.11, p7, LL40ff) that costs should follow the event. On that basis the applicant should be ordered to pay the costs of all respondents. However, Dr Griffiths specifically sought (T30.6.11, p7, LL49ff) an " opportunity to be heard ", if the " event " proved to be the dismissal of the Council's application.
Accordingly, I will formally reserve the question of costs, as Pain J did in similar circumstances in Pittwater .
Orders
The orders of the court will, therefore, be:
1. The amended summons is dismissed.
2. Costs are reserved.
3. All exhibits are returned.
Decision last updated: 23 January 2012
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