Community Action for Windsor Bridge Inc v NSW Roads and Maritime Services

[2015] NSWLEC 167

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Community Action for Windsor Bridge Inc v NSW Roads and Maritime Services & anor [2015] NSWLEC 167
Hearing dates:	22, 23 October 2014
Date of orders:	27 October 2015
Decision date:	27 October 2015
Jurisdiction:	Class 4
Before:	Brereton AJ
Decision:	All the grounds for review of the Minister’s decision fail. Summons dismissed
Catchwords:	JUDICIAL REVIEW – application for declaration that decision of Minister for Planning and Infrastructure to approve destruction of Windsor Bridge and construction of new bridge invalid – whether decision void for lack of certainty and finality – whether Minister’s decision defers determination of material modifications so as not to amount to “approval” – validity on grounds of finality and certainty to be determined by construction of statute vesting decision-making power – approval under (NSW) Environmental Planning and Assessment Act 1979, Pt 5.1 – permissibility of degree of generality – requirement that outer limits of approval are discernible – relevance of complexity and scope of project under approval – whether outer parameters of approval defined – whether Minister failed to take into account relevant considerations – whether cultural heritage was mandatory relevant consideration – whether Minister failed to give proper consideration to cultural heritage – severance of void condition – whether severance of impugned condition, if invalid, would result in approval operating substantially differently – Wednesbury unreasonableness – application of doctrine in planning context – whether inclusion of impugned condition manifestly unreasonable.
Legislation Cited:	(CTH) Environmental Protection and Biodiversity Conservation Act 1999 (NSW) Environmental Planning and Assessment Act 1979, s 75I, s 80, s 115T, s 115U, s 115U(1), s 115U(2), s 115U(3), s 115W, s 115W(1), s 115X(1), s 115X(2), s 115X(3), s 115Y(1), s 115Y(2), s 115Y(3), s 115Y(4), s 115Z(1), s 115Z(3), s 115Z(4), s 115Z(5), s 115Z(6), s 115ZA, s 115ZB, s 115ZB(1), s 115ZB(3), s 115ZI(1), s 115ZI(2), s 115ZJ(2), Pt 4, Pt 5, Pt 5.1 (NSW) Environmental Planning and Assessment (Part 3A Repeal) Act 2011 (NSW) Environmental Planning and Assessment Regulation 2000, Schedule 2, Parts 3-4 (NSW) Interpretation Act 1987, s 32(2) (NSW) State Environmental Planning Policy (State and Regional Development) 2011, cl 14, Sch 3 cl 1(1) (NSW) State Environmental Planning Policy (Infrastructure) 2007, cl 94(1)
Cases Cited:	Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. Auburn Municipal Council v Szabo (1971) 67 LGRA Barrington - Gloucester - Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197; (2012) 194 LGERA 113 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 Belmorgan Property Development Pty v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 Bruce v Cole (1998) 45 NSWLR 163 Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301 Byron Shire Businesses For The Future Inc v Byron Council [1994] NSWLEC 159 Coffs Harbour City Council v The Minister for Planning and Infrastructure [2012] NSWLEC 4; (2012) 187 LGERA 252 Coffs Harbour City Council v The Minister for Planning and Infrastructure (2011) 184 LGERA 419 Dunsmuir v New Brunswick [2008] 1 SCR 190 Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia [1994] FCA 1161; (1994) 51 FCR 213 Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia (1995) 58 FCR 46; (1995) 88 LGERA 297; (1995) 130 ALR 447 Hurstville City Council v Renaldo Plus 3 Pty Limited [2006] NSWCA 248 Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 Khan v Minister for Immigration & Ethnic Affairs (1987) 14 LD 291 Kindimindi Investments Pty Ltd v Lane Cove Council, [2006] NSWCA 23; (2006) 143 LGERA 277 Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 87 ALJR 618 Minister for Planning v Walker (2008) 161 LGERA 423 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Notaras v Waverly Council [2007] NSWCA 333 Parramatta City Council v Hale (1982) 47 LGRA 319 Parramatta City Council v Shell Company of Australia Limited (1971) 2 NSWLR 632; 27 LGRA 102 Pittwater Council v Minister for Planning [2011] NSWLEC 162; (2011) 184 LGERA 419 Property Development Pty v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 Qantas Airways Ltd v Aravco Ltd (1996) 185 CLR 43 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 Scott v Wollongong City Council (1992) 75 LGRA 112 Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 Transport Acton Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGRA 20 Walsh v Parramatta City Council [2007] NSWLEC 255 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Wechsler v Auburn Council (1997) 130 LGERA 134 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Zhang v Canterbury City Council (2001) 51 NSWLR 589
Texts Cited:	Casey & Lowe Windsor Bridge Replacement Project Independent Heritage Review, August 2013 Illawarra Regional Environmental Plan No 1 Urban Design and Landscape Concept Report October 2012
Category:	Principal judgment
Parties:	Community Action for Windsor Bridge Inc (Applicant) NSW Roads and Maritime Services (1st Respondent) Minister for Planning and Infrastructure (2nd Respondent)
Representation:	N.J. Williams SC w M.C. Fraser (Applicant) A. Galasso SC w C Norton (1st Respondent) J.K. Kirk SC w Z Heger (2nd Respondent)   Roderick Storie Solicitors (Applicant) Clayton Utz (1st Respondent) Jennifer Smith, Legal Services, Department of Planning and Environment (2nd Respondent)
File Number(s):	2014/40163

Judgment

Introduction

1. The heritage-listed Windsor Bridge over the Hawkesbury River was constructed in 1874 and raised to its current level in 1896. Located to the north of Windsor, it connects Windsor Road on the southern side of the river with Wilberforce Road and Freemans Reach Road on the northern side. The bridge deck is at the height of the northern foreshore riverbank, and lands in a deep cutting on the southern foreshore, “visually integrating the bridge into the river setting.” [1] The approach road from Windsor – Bridge Street – cuts through Thompson Square from about natural ground level at George Street on the southeast of Thompson Square, curving through the Square in a deepening cutting to the bridgehead at the northwest.

   1. Urban Design and Landscape Concept Report October 2012 p ix, incorporated as a working paper in the EIS.

2. Thompson Square was so named, and declared a public square, as part of the establishment of the town of Windsor in 1810 by Governor Macquarie, who ordered the clearing of structures from the rectangle which became the square. The square is surrounded by a number of historic and heritage listed buildings, representative of most of the architectural history of Windsor, from the completion of the Macquarie Arms Hotel in 1815, to the cottage built over Thompson's allotment in 1955. Thompson Square was protected by a permanent conservation order in 1982, and transferred to the State heritage register in 1999, in which its significance is described as follows:

Thompson Square is one of the oldest public squares in Australia and notable for the large number of Colonial Georgian buildings which surround it. It is the only public square remaining from the original town and has played an important part in the history of the town. It is the only remaining civic space as laid out by Governor Macquarie and is a vital precinct in the preservation of the early Colonial character of Windsor. The Square reflects Macquarie's visionary schemes for town planning excellence in the infant colony.

3. On 20 December 2013, the second respondent Minister for Planning and Infrastructure (“the Minister”) gave the first respondent NSW Roads and Maritime Services (“RMS”) an approval ("the Approval") under (NSW) Environmental Planning and Assessment Act 1979 (“the EPA Act”), s 115ZB, for a State significant infrastructure (“SSI”) project known as the Windsor Bridge replacement project (“the Project”). The Project involves the construction of a new 159m long five span bridge across the Hawkesbury River, construction of new northern and southern approach roads and the realignment and modification of access roads, and the removal of the existing bridge. Bridge Street would be realigned along the eastern side of Thompson Square, and the old Bridge Street, with its characteristic curving through Thomson Square below natural ground level and leading to the existing southern bridgehead, would be filled in. The new approach road along the eastern side of Thompson Square, which would be significantly wider than the old road to the old bridge, would commence at approximately natural ground level on the Windsor (southern) side of the Hawkesbury but then rise above the existing approximate ground line, as the land falls away to the river, onto the proposed new bridgehead about 3m higher than the existing southern bridgehead.

4. The Approval was subject to numerous conditions, including “Pre-Construction Conditions” contained in Part B of the Approval which must be satisfied before commencement of pre-construction or construction activities. The most significant of them for present purposes is condition B1, which requires RMS to submit, for approval by the Director-General, a Strategic Conservation Management Plan (“CMP”) for the project area on the southern side of the Hawkesbury River. The CMP must be prepared by appropriate heritage consultants and provide for the heritage conservation of the Thompson Square Conservation Area (referred to hereafter, for convenience, simply as “Thompson Square”), and include, but not be limited to (a) identification of the heritage value of Thompson Square, (b) the development of heritage design principles for the Project to retain the heritage significance of Thompson Square, (c) specific mitigation measures for Thompson Square, and (d) changes to the detailed design of the Project to mitigate heritage impacts.

5. Condition B2 requires RMS to complete a detailed archival recording of all historic heritage sites within the CMP study area. Condition B3 requires RMS to complete an archaeological investigation program of Aboriginal and non-Aboriginal heritage in the project area on the southern side of the river, and condition B4 requires completion of a similar program in respect of Aboriginal heritage on the northern side. Condition B5 prohibits commencement of construction in areas likely to alter flood conditions until works identified in a hydrological mitigation report have been completed, unless otherwise agreed by the Director-General. Condition B6 provides that terracing (which had been proposed for Thompson Square) is not approved as part of landscaping for the Project, and condition B7 requires RMS to prepare an Urban Design and Landscape Plan to guide the landscaping for the project, to present an integrated urban design for the project sympathetic to the heritage values and significance of Thompson Square. Finally, condition B8 requires the revision of the project to incorporate specified amendments, and the provision of the new design to the Director-General for approval. This condition also stipulates that, should any further design amendments be required as a consequence of compliance with conditions B1 to B7, any such revised designs must be approved by the Director-General.

6. By summons filed on 19 March 2014, the applicant Community Action for Windsor Bridge Inc – an incorporated not-for-profit community association which is opposed to the Project, and which made a submission in the course of public participation opposing the proposal on account of its impact on Thompson Square, both as a heritage precinct and as an area in the town centre Windsor for use and enjoyment of the public – claims declaration that condition B1 (and/or conditions B1-B8 together), and consequentially the Approval, is invalid. The applicant acknowledges that it cannot in these proceedings challenge the Approval on its merits, but contends that the Minister did not give a valid approval under s 115ZB, essentially on three bases. The first is that the Minister did not decide, but deferred for later resolution in accordance with the terms of conditions B1 to B8, what modifications were to be made to the Project, so that the ultimate form and appearance of the Project was not discernible from the Approval, with the result that the purported approval lacked sufficient finality and certainty to be an “approval” within s 115ZB. The second is that the Minister failed properly to take into account as a relevant consideration the impact of the Project on cultural heritage. The third is that the Approval, particularly by the imposition of condition B1 (and/or conditions B1 to B8), was manifestly unreasonable.

7. The respondents deny that the impugned conditions are invalid. RMS – but not the Minister – alternatively contends that any invalid condition is severable from the Approval so that the Approval is not invalid.

Background

The Windsor Bridge Replacement Project

8. The existing bridge is a pedestrian and two-lane road crossing, which is currently used by approximately 19,000 vehicles per day, 7% of which are heavy vehicles. RMS has been monitoring the condition of the bridge since 2003, and determined that there had been substantial deterioration of the bridge structure (including corrosion of parts of the bridge below water, cracking in pier columns, deteriorated load-bearing stiffness in one span, and cracking and corrosion in the bridge deck), resulting from age and heavy usage. RMS considered that the poor condition of the bridge presented key shortcomings in respect of its safety and reliability to support current and predicted traffic volumes in the future. In addition, the bridge is within the 1 in 2 year flood event level, and has been flooded on 59 occasions in the past 100 years; during major flood events, it is closed to traffic.

9. RMS developed and investigated ten options for the rehabilitation or replacement of the bridge – including a bypass of Windsor, other routes through Windsor that did not pass through Thompson Square, refurbishing the existing bridge, and “doing nothing”. Following agency and community consultation, RMS determined that its preferred option was the construction of a new 159m long, five span bridge across the Hawkesbury River, located 35m downstream (northeast) of the existing bridge, including the construction of new northern and southern approach roads, the realignment and modification of access roads, and the removal of the existing bridge.

The assessment and approval process for SSI

10. Application for approval for the Project fell to be considered by the Minister under EPA Act, Part 5.1, because it is SSI.

11. Part 5.1 was inserted into the EPA Act by (NSW) Environmental Planning and Assessment (Part 3A Repeal) Act 2011 (which also repealed former Part 3A), with effect from 1 October 2011. For the purposes of Part 5.1, “infrastructure” is defined as “development for the purposes of infrastructure” – including roads; “approved State significant infrastructure” means infrastructure to the extent that it is approved by the Minister under Part 5.1; and “development” includes an activity within the meaning of Part 5. [2]

    2. EPA Act s 115T.

12. “State significant infrastructure” is development that is declared under s 115U to be SSI. [3] A State Environmental Planning Policy (“SEPP”) may declare any development to be SSI, if it is development that a SEPP permits to be carried out without development consent under Part 4, and it is either infrastructure or "other development that (but for [Part 5.1] and within the meaning of Part 5) would be an activity for which the proponent is also the determining authority and would, in the opinion of the proponent, require an environmental impact statement to be obtained under Part 5". [4]

    3. EPA Act s 115U(1).

    4. EPA Act s 115U(2), (3).

13. SEPP (State and Regional Development) 2011 provides that development is declared to be SSI for the purposes of the EPA Act if (a) the development on the land is, by operation of a SEPP, permissible without development consent under Part 4; and (b) the development is specified in Schedule 3 of that SEPP.[5] Here, condition (a) is satisfied because development for the purpose of a road or road infrastructure facilities may be carried out by or on behalf of a public authority without consent on any land. [6] Condition (b) is satisfied because Schedule 3 specifies "Infrastructure or other development that (but for Part 5.1 of the Act and within the meaning of Part 5 of the Act) would be an activity for which the proponent is also the determining authority and would, in the opinion of the proponent, require an [EIS] to be obtained under Part 5 of the Act", [7] and the proponent (RMS) was also the determining authority and it "formed the opinion that the impact of the project on non-Aboriginal heritage would likely be significant based on direct and indirect impacts to the Thompson Square Conservation Area as well as at least 13 other items of Commonwealth, State and/or local heritage significance … and would require an environmental impact statement to be obtained …". [8]

    5. SEPP (State and Regional Development) 2011, cl 14.

    6. SEPP (Infrastructure) 2007, cl 94(1).

    7. SEPP (State and Regional Development) 2011, Sch 3, cl 1(1).

    8. SSI Application Report, October 2011, p4.

14. A person must not carry out development that is State significant infrastructure unless the Minister has approved of the carrying out of the development under Pt 5.1, and the person must comply with any conditions to which such approval is subject. [9] A person proposing to carry out SSI (“the proponent”) may apply for the approval of the Minister under Part 5.1 to do so. [10] The application must “describe the infrastructure”, and is to be lodged with the Director-General. [11] This must mean that the application must describe the infrastructure that the proponent proposes to carry out, which I will call “the proposed infrastructure”, which will inevitably be in greater specificity than the description of what is declared to be SSI under s 115U. When such an application is made, the Director-General is to prepare, and notify the proponent of, “environmental assessment requirements in respect of the infrastructure” – necessarily meaning the proposed infrastructure – which must require an environmental impact statement (EIS) to be prepared by or on behalf of the proponent. [12] In preparing those environmental assessment requirements, the Director-General must consult relevant public authorities “and have regard to the need for the requirements to assess any key issues raised by those public authorities”. [13] After the EIS is submitted it is to be publicly exhibited, and submissions may be made by any person to the Director-General, who is required to provide a copy of them to, inter alia, the proponent. [14] The Director-General may then require the proponent to submit a response to the issues raised in the submissions, and a preferred infrastructure report (“PIR”) outlining any proposed changes to the SSI to minimise its environmental impact or deal with any other issues raised during the assessment of the application. [15] Again, the reference to SSI in this context must mean the proposed infrastructure as described in the application. The Director-General must then give a report to the Minister on the SSI for the purpose of the Minister’s consideration of the application for approval to carry it out, including the proponent’s EIS and any PIR. [16]

    9. EPA Act s 115W.

    10. EPA Act s 115X(1), read with the definition of “proponent” in s 115T.

    11. EPA Act s 115X(2), (3).

    12. EPA Act s 115Y(1), (2), (4).

    13. EPA Act s 115Y(3).

    14. EPA Act s 115Z(1), (30, (4), (5).

    15. EPA Act s 115Z(6).

    16. EPA Act s 115ZA.

10. The Minister’s discretion to approve the development is conferred by s 115ZB, in the following terms:

115ZB Giving of approval by Minister to carry out project

(1)   If:

(a)   the proponent makes an application for the approval of the Minister under this Part to carry out State significant infrastructure, and

(b)   the Director-General has given his or her report on the State significant infrastructure to the Minister,

the Minister may approve or disapprove of the carrying out of the State significant infrastructure.

(2) The Minister, when deciding whether or not to approve the carrying out of State significant infrastructure, is to consider:

(a)   the Director-General’s report on the infrastructure and the reports, advice and recommendations contained in the report, and

(b)   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 State significant infrastructure.

(3)   State significant infrastructure may be approved under this Part with such modifications of the infrastructure or on such conditions as the Minister may determine.

The Application

16. RMS’s application for approval of the Project, dated 4 October 2011, was accompanied by a State significant infrastructure Application report. The Application report recorded that the existing bridge:

...not only provides a local link for communities on either side of the river, but is also an important regional link between western Sydney and the Hunter Valley or Blue Mountains. Around 18,000 vehicles use the bridge crossing per day, with about nine per cent of those being heavy vehicles. Parts of the existing bridge are 137 years old and are deteriorating due to age and heavy usage. ...

In December 2003, the RTA completed a bridge inspection and condition assessment report for Windsor Bridge. The structure was assessed as being in poor condition and concluded the structure requires extensive repairs to ensure its ongoing stability and public safety to meet current traffic demands. ...

The current height of the bridge and the northern approach is within the 1 in 2 year flood level for the Windsor area while the southern approach roads provide access up to the 1 in 5 year flood level.

The width of the existing bridge and design of the approach roads do not meet current road design standards ...

17. The report stated that the primary aim of the Project was to provide a safe and reliable crossing of the Hawkesbury River at Windsor; and other project objectives were to improve safety for motorists, pedestrians and cyclists; to improve traffic and transport efficiency; to improve the level of flood immunity (above the 1 in 5 year flood event); to meet long term community needs; to minimise the impact on heritage and the character of the local area; and to be a cost effective and affordable outcome. The report also stated that in addition to the demolition of the existing bridge and the construction of a new bridge, RMS proposed to upgrade adjacent intersections and approach roads, including the realignment of Bridge Street with the eastern side of the parkland.

18. As a result of preliminary environmental investigations, key environmental issues had been identified, which would require further environmental assessment. These included non-Aboriginal heritage, Aboriginal heritage, noise and vibration, land use – property and socio-economic and urban design (including landscape character and visual impact) – as well as other environmental issues considered to be of lesser consequence. The report then provided initial discussion of each of these issues. In relation to non-Aboriginal Heritage it contained a discussion of the initial development of Thompson Square by Governor Macquarie from 1810 to 1820. A preliminary heritage report prepared in 2009 had identified potential heritage constraints for all options under consideration. The likely significant impact of the project on Thompson Square and on heritage items was expressly identified, and various future assessments were foreshadowed. The discussion of urban design also expressly acknowledged the permanent impact the Project would have on the physical and visual attributes of Thomson Square, and identified objectives which included maintaining the integrity of cultural and historic elements, and enhancing the existing amenity, visual character and cultural landscapes of Thompson Square and Windsor.

The Director-General's environmental assessment requirements

19. On 24 November 2011, the Director-General issued environmental assessment requirements under s 115Y, identifying the requirements for the Project EIS. These included that the EIS address nine specific matters, referred to as "Key issues" (reflecting the terminology of s 115Y(3)), one of which was heritage. The consideration of heritage was required to include specified evaluations in relation to impacts to State or locally significant heritage items. Other “key issues” included "Visual Amenity, Urban Design and Landscaping'' and "Soils, Sediments and Water". Assessment requirements for the former included landscape and urban design objectives for the reinstatement and rehabilitation of Thompson Square, and for the latter included hydrological issues.

The environmental impact statement

20. The EIS, which was completed in November 2012, assessed the Project and several alternatives – including a lower-level bridge, bridges at different locations, and the refurbishment of the existing bridge. It also assessed the various impacts, including the impact on State and local historic heritage and maritime heritage, Aboriginal heritage, visual amenity design and landscape of the area, and hydrology.

21. The Executive Summary of the EIS describes the project, its objectives, and why it was required; indicates that a range of options were considered – including retaining the existing bridge, bypassing Windsor or replacing the existing bridge with a range of different bridge types and bridge and road alignments, and different options for the design of Thompson Square; sets out the expected beneficial outcomes – including maintaining the existing road link and improving its safety, increasing the usable open space within Thompson Square and improving access to the waterfront; and also sets out the main adverse outcomes expected – including to the heritage values of Thompson Square and impacts on archaeology within Thompson Square and foreshore areas. The Introduction contains an express acknowledgement of the significant impact on heritage items, including Thompson Square.

22. Chapter 4 discusses project development and alternatives, and describes the process by which the preferred option was selected; this includes the development, assessment and selection of options for the urban design of Thompson Square. It records that the input of the Heritage Council was sought in respect of design of works in Thompson Square. The ten options considered are set out in a table, and the three shortlisted options (and the "do nothing" option) were each evaluated against the various project objectives. The ultimately preferred option ranked lowest against the heritage objectives, but performed well against other objectives.

23. The difficulties with heritage impacts on Thompson Square were expressly acknowledged, and section 4.5 discusses the further development of urban design options for Thompson Square compatible with the preferred option, informed by the historical context and by urban design principles developed to guide design, including protecting and interpreting the heritage values of Thompson Square, maximising available open space in the Square, and improving the amenity of the Square and surrounding areas. The design of the preferred option incorporated measures to reduce visual impacts on Thompson Square, and the rehabilitation of the Square. The relocation of the approach road – which currently bisects the Square parkland – to the eastern side, thus creating a larger area of consolidated open space, was identified as a benefit of the preferred option.

24. In Chapter 5 (Project description), reference is made to proposed heritage investigations. Chapters 7.1 through 7.8 review in detail the various key issues relevant to assessment of the Project, including historic heritage, and visual amenity, urban design and landscape. These chapters are each supported by detailed working papers appended to the EIS.

25. Chapter 11 (Project justification and conclusion) included the following:

While [the] Windsor bridge replacement project addresses the project objectives it would result in significant impacts on the heritage values of [Thompson Square] and its archaeological resources. These impacts have been minimised as much as possible through reducing the height of the bridge, selecting a bridge type that has a lower visual profile and including appropriate urban design features and landscaping, however, they cannot be ameliorated completely. These impacts are unavoidable unless an alternative option was selected, however the alternative options would have other impacts and do not provide as high value for money as the project. …

There are a number of benefits to Thompson Square from the project including the consolidation and creation of a larger green space area in Thompson Square parkland and improved pedestrian and cycle paths and crossings linking Thompson Square with Macquarie Park, The Terrace and east Windsor ...

The project has been designed to accommodate future growth in traffic and would provide a cost effective, efficient and safe route for local and regional traffic. It would provide a crossing of the Hawkesbury River with a higher flood Immunity than the existing bridge and appropriate for the surrounding road network. In comparison to other options for a road crossing of the Hawkesbury River at Windsor, the project provides the best value for money and a part from its impacts on heritage ... It will have minimal additional impacts on the surrounding environment.

Public exhibition and submissions

26. The EIS was publicly exhibited between 14 November and 17 December 2012. The Minister’s Department received 100 submissions, comprising six from public authorities and 94 from the general public and special interest groups.

27. Subsequently, RMS produced a combined “Response to Submissions and Preferred Infrastructure Report”, dated April 2013. The PIR addressed issues raised in the submissions, including heritage impacts, urban design and landscaping, and hydrology. It outlined (and appended) further studies that had been undertaken in relation to those issues, including heritage investigations, a landscape character and visual impact assessment, an operational noise and architectural treatment assessment, and proposed options for archaeological investigation of Thompson Square. The PIR also proposed some modifications to the Project to address certain of the issues raised, including by increasing the clearance of the new bridge over the Terrace (at the southern end, adjacent to Thompson Square), changing the location of bridge piers, and various noise mitigation measures.

The independent heritage review

28. The Department commissioned an independent heritage review by Casey & Lowe Pty Ltd, dated August 2013, which identified a number of shortcomings in the heritage assessment contained in the EIS. The consultants reported that the heritage assessment in the EIS was insufficient to fully understand the significance of Thompson Square, and that it did not provide an appropriate detailed analysis of Thompson Square and the relationships between buildings and the open space of the square, nor any heritage design principles or policies to guide the impact assessment: [17]

    17. Casey & Lowe Windsor Bridge Replacement Project Independent Heritage Review, August 2013

5.0   Key Issues

The extensive reporting undertaken for the WBRP [Windsor Bridge Replacement Project] Heritage Assessment and Statement of Heritage Impact … is sprawling, repetitive, and poorly synthesised. Additionally, it is generally inadequate in its analysis of historic maps and images, and incomplete where it does not conform to the guidelines and objectives of the NSW Heritage Manual. The scale of concerns about this report relates to what may appear to be minor details but which have significant cumulative consequences which have led to an inadequate understanding of the significance of Thompson Square Conservation Area and the reasons for its State significance. On these grounds the reviewers are not in a position to recommend any relevant conditions for consent of approval. While these issues may appear minor within the context of the recommendations from Working Paper 1, that the project should not go ahead because of the impact on the significance of Thompson Square Conservation Area and Windsor Bridge, they are of high importance if the WBRP were to be approved on the basis of the current assessment, analysis, and assumptions which were to be used to provide a guide for managing the impacts on the square. The specifics of this key issue are detailed below.

The Heritage Assessment is insufficient to fully understand the significance of the Thompson Square Conservation Area. Further work needs to be undertaken to bring the assessment in line with the NSW Heritage Manual … The current assessment does not provide an appropriate detailed analysis of Thompson Square Conservation Area and the relationships between buildings and the open space of the square nor any heritage design principles or policies to guide the impact assessment.

…

8. The EIS discusses how RMS’s project criteria for all other options could not be met but RMS does not consider that the failure to meet the criteria relating to conservation of heritage has any real weight in its decision making. It appears not to be a weighted criterion with any effects on the decision making for the project, other than route options. The monetary value of the project appears to be the key criterion for deciding on the option through the SHR-listed Thompson Square Conservation Area. No real information has been provided in relation to the social and heritage cost of this option to both the Windsor and wider communities, and the heritage of the state, should the proposed option be approved.

The Director-General's environmental assessment report

29. In the Director-General’s report prepared for the purposes of s 115ZA (although the cover page of the Report incorrectly refers to s 75I, which was the corresponding provision in the former Part 3A), dated 20 September 2013 ("the Director General's report”), the executive summary notes that the key issues identified arising from the submissions were traffic, visual amenity, heritage, and consideration of project alternatives and consultation, and states:

The Windsor Bridge Replacement Project is required due to the poor condition of the existing Bridge resulting from its age and heavy usage and insufficient lane capacity to meet long term traffic demands. In June 2008, the NSW Government committed funding to rehabilitate or replace Windsor Bridge. RMS Investigated 10 options for the project and following agency and community consultation, RMS determined that Option 1, being the construction of a new Bridge located 35 m downstream of the existing Bridge to be the preferred option.

30. The Director-Generals' report addressed a number of issues, including visual amenity, urban design and landscape; heritage impacts; and noise and vibration. In connection with heritage, it refers to – and appears to accept – the conclusions of the independent heritage review. It states:

The Department consulted with RMS regarding the shortcomings identified by the expert review. In response, RMS prepared a draft Conservation Management Plan (CMP). This outlined RMS’s intention to construct the project in a manner which so far as practicable conserves the unique heritage value of the project area via specific project design features and implementation of other mitigation measures. The Department concurs with [RMS’s] approach and has expanded upon this by recommending stringent pre-construction conditions of approval for the conservation of heritage value.

31. The report noted that the Project would have a number of immediate and long-term benefits, including traffic benefits, upgrading the bridge and approaches to modern engineering and safety standards, increased pedestrian and cycling access across the bridge and to the southern foreshore, a consolidated Thompson Square and more usable public domain resulting from moving the road through the Square to the south, amenity improvements in Thompson Square, and an enhanced visual setting of the Project area. But it also acknowledged negative impacts on the heritage fabric and character of Thompson Square, and the strong views expressed in submissions relating to heritage impacts. However, it concluded that the Project was consistent with the broader public interest given its benefits, and that the heritage impacts could be mitigated by the imposition of conditions:

The Department acknowledges the heritage impacts associated with the project including the loss of the existing Windsor Bridge and impact on the heritage value of the Thompson Square Conservation Area. The Department also recognises the strong views expressed in submissions in relation to heritage impacts. However, on balance, the Department is satisfied that despite these impacts, the Windsor Bridge Replacement Project is consistent with the objects of the Act and is in the broader public interest given its immediate and long term regional and local traffic benefits. The Department considers that the heritage impacts associated with the project can, to some degree, be managed by stringent conditions, including:

•   The preparation of a Strategic Conservation Management Plan and Archival recording on the southern side of the Hawkesbury River;

•   Archaeological Investigation Programs comprising Aboriginal and non-Aboriginal Heritage with the results detailed in a Historic Archaeological report and preparation of a Detailed Salvage Strategy;

•   A Hawkesbury Region Sand Bodies Study should any Pleistocene and/or early Holocene be encountered during construction works; and

•   An Urban Design and Landscape Plan.

32. The report included a draft instrument of approval which set out the recommended conditions, a list of heritage items in the project area, and a diagram of the Strategic Conservation Management Plan area. The recommended conditions were the same as those that were ultimately adopted by the Minister.

The Approval

33. The Department prepared a briefing note seeking the Minister's determination of the application, which was signed by the Director-General on 21 September 2013. The briefing note includes a statement of the "current position", reflecting the conclusions of the Director-General's report, and states that 79 conditions had been recommended, including a series of pre-construction conditions dealing with issues such as heritage, hydrology, urban design and landscaping, and provision of a revised design for construction work on the southern side of the river. The briefing note referred to the strong concerns expressed about heritage impacts, but concluded that "on balance, the Department is satisfied that despite these heritage impacts, the Windsor Bridge Replacement Project is consistent with the objects of the Act and is in the broader public interest given its immediate and long term regional and local traffic benefits".

34. The Minister countersigned the briefing note and the instrument of approval on 20 December 2013, thereby ostensibly approving the carrying out of the Project, with the modifications and subject to the conditions referred to in the briefing note. This did not involve approval of the proposal in its entirety, but required it to be modified in some respects. In particular, the Minister did not approve terracing for the landscaping of Thompson Square; he did not approve the raising of the southern approach by 1 metre as proposed in the PIR and required the Project to revert to the level referred to in the EIS; he insisted that public access to the existing wharf be maintained and alternative coach access and arrangement for pedestrians and cyclists be detailed; he stipulated that access to numbers 4 and 6 Bridge Street was to be maintained at all times; and he required that the northern roundabout (on the northern side of the river) be designed in accordance with applicable standards.

33. While the impugned conditions have been summarised above, at this point it is pertinent to refer to the relevant conditions in greater detail. By the instrument of approval, the Minister approved “the [SSI] application referred to in Schedule 1, subject to the conditions in Parts A-D". The approved development is described in Schedule 1 as follows:

Windsor Bridge Replacement Project, including:

•   Construction and operation of a replacement bridge, northern and southern approach roads, intersections and associated infrastructure crossing the Hawkesbury River;

•   Removal of the existing Windsor Bridge and approach roads;

•   Ancillary works including rehabilitation and landscaping.

36. Condition A1 requires RMS to carry out the SSI “generally in accordance with” certain specified documents, including the Application, the EIS, the PIR, “(d) Any plans and/or documentation submitted to satisfy the Pre­construction Conditions of this consent as approved in writing by the Director­General”, and the conditions of consent. Condition A2 provides that if there is any inconsistency between the plans and documentation referred to in condition A1, the most recent document shall prevail; however, the conditions of consent prevail to the extent of any inconsistency. Condition A3 requires RMS to comply with any reasonable requirements of the Director-General arising from the Department’s assessment of material submitted in accordance with the Approval, and the implementation of actions or measures contained within those documents.

37. Conditions B1 to B8 are described as "Pre­construction Conditions", and are stated to have been imposed in accordance with the following objectives:

To minimise impacts on heritage sites, including sites within the Thompson Square Conservation Area and archaeological sites in, and in the vicinity of, the site;

To salvage and interpret any impacted heritage sites, including historical archaeologically significant sites within, and in the vicinity of, the site;

To conduct archival recording and further research of the Thompson Square Conservation Area;

To enhance and conserve the Thompson Square Conservation Area, the heritage items identified in Table 1 of Appendix 1, with the exception of Item 3 (the Thompson Square lower parkland area) and Item 20 (Windsor Bridge) and any archaeological sites within, and in the vicinity of, the site, while providing for the construction of a replacement bridge at Windsor; and

To incorporate changes in the final design of the SSI, where practical, to achieve Objectives (a), (b) and (d) above.

38. Condition B1 is, so far as relevant, in the following terms:

CULTURAL HERITAGE

B1.   The Applicant shall submit a Strategic Conservation Management Plan (CMP) to the Director-General for the project area on the southern side of the Hawkesbury River as shown in Appendix 2 Strategic Conservation Management Plan study area. The CMP shall be prepared by appropriately qualified and/or experienced heritage consultants. ...

The Applicant shall not carry out any pre-construction or construction activities on the southern side of the Hawkesbury River for the SSI before the CMP has been approved by the Director-General. The CMP is to provide for the heritage conservation of the Thompson Square Conservation Area. The CMP shall be prepared in consultation with the heritage Branch, OEH and in accordance with the relevant guidelines of the NSW Heritage Council and include, but not be limited to:

(a)   identification of the heritage value of the Thompson Square Conservation Area, including statements of significance for the Thompson Square Conservation Area and any individual listings within the conservation area of any local, state or national heritage items;

(b)   the development of heritage design principles for the project to retain the heritage significance of the Thompson Square Conservation Area and any individual listed item within the conservation area or in proximity to the site, with the exception of Item 3 (the Thompson Square lower parkland area) and Item 20 (Windsor Bridge) in Table 1 of Appendix 1;

(c)   specific mitigation measures for the Thompson Square Conservation Area and individually listed items to minimise impact and to ensure that final measures selected are appropriate and the least intrusive option; and

(d)   changes to the detailed design of the SSI to mitigate heritage impacts.

Condition B1 also requires preparation of an Interpretation Plan, for the approval of the Director-General, prior to the commencement of any pre­construction or construction activities, which is to address "individual listed sites, non-Aboriginal archaeology and Aboriginal archaeology" and must include "specific media design, content, location and materials".

39. Condition B2 requires the completion, prior to the commencement of any pre-construction or construction activities, of a detailed archival recording of all the historic heritage sites within the CMP study area in accordance with the guidelines issued by, and in consultation with, the NSW Heritage Council and to the satisfaction of the Director-General.

40. Condition B3 requires RMS to undertake an archaeological investigation program comprising Aboriginal and non-Aboriginal heritage in the project area on the southern side of the Hawkesbury River before commencing any pre­construction or construction activities, to the satisfaction of the Director-General. The Program is to include archaeological testing and geophysical investigation, “as required for the significance assessment”. The results are to be detailed in an Historic Archaeological Report and a Detailed Salvage Strategy, which is to include (a) detailed recommendations for further archaeological work, (b) consideration of measures to avoid or minimise disturbance to archaeological sites, and (c) where impacts cannot be avoided, recommend actions to salvage and interpret those sites, (d) consideration of providing visual evidence of heritage sites in the final design of the SSI to preserve and acknowledge the heritage value of the Area, (e) management and mitigation measures to minimise impacts of pre-construction and construction activities, and (f) preparation of a Hawkesbury Region Sand Bodies Study (to deal with the possibility of Pleistocene or early Holocene being located during the archaeological investigations).

41. Condition B4 requires RMS to undertake an Archaeological Investigation Program for Aboriginal Heritage in the project area on the northern side of the River, to the satisfaction of the Director-General, with the results to be detailed in an Historic Archaeological Report and a Detailed Salvage Strategy similar to that referred to in Condition B3.

42. Condition B5 provides that RMS shall not commence construction of the project on or within areas likely to alter flood conditions until the works identified in the Hydrology Mitigation Report, required under condition C27, have been completed, unless otherwise agreed by the Director-General. (Condition C27 requires the preparation of a Hydrology Mitigation Report for properties in the Hawkesbury River floodplain areas where flood impacts are predicted to increase as a result of the Project, identifying properties in those areas likely to have an increased flooding impact, and mitigation measures).

43. Condition B6 gave effect to the decision to reject terracing. It and condition B7 are as follows:

URBAN DESIGN AND LANDSCAPE PLAN

B6.   Terracing is not approved as part of landscaping for the SSI.

B7.   The Applicant shall prepare an Urban Design and Landscape Plan prior to the commencement of pre-construction and construction activities in the southern side of the Hawkesbury River to guide the landscaping for the project. The Plan shall be prepared in consultation with the OEH, and Hawkesbury Council and shall present an integrated urban design for the project that is sympathetic to the heritage values and significance of the Thompson Square Conservation Area and shall be prepared in accordance with the requirements of condition C47.

44. Condition B8 gave effect to the decision to reject certain other aspects of the proposal, and is in the following terms:

REVISED DESIGN

B8.   The project is to be revised to incorporate the following amendments. The new design of the SSI shall be provided to the Director-General for approval prior to the commencement of pre-construction and construction activities in the southern side of the Hawkesbury River:

the raising of the southern approach road by approximately 1 metre is not approved. The height/clearance of the southern approach road shall be designed ensure consistency [sic] with the EIS.

public access to the existing wharf is to be maintained and alternative coach access, arrangements for pedestrians/cyclists and consultation undertaken are to be detailed;

access to numbers 4 and 6 Bridge Street is to be maintained at all times. Alternative access arrangements to those proposed shall be investigated to the satisfaction of the Director-General;

the northern roundabout shall be designed to ensure consistency with the Austroads Guide to Road Design: Part 4B, particularly in relation to geometry and lane designations.

In the event that further design amendments are required as a consequence of compliance with conditions B1 to B7, any such revised designs must be approved by the Director-General.

45. Conditions C1 to C48 provide detailed environmental performance conditions, several of which (C1-C5, C47-C48) deal with heritage and urban design issues, others (C26-C33) with hydrology and flooding. Conditions D1 to D14 deal with ·environmental management, reporting and auditing, including the preparation and implementation of a number of management plans dealing with various aspects of the proposal. One of these (D5(e)) is a Construction Heritage Management Sub-plan to detail how construction impacts on Aboriginal and non-Aboriginal heritage will be avoided, minimised and managed.

The issues

46. The applicant’s Summons (Judicial Review) invokes five grounds for the contention that there was no approval by the Minister within the meaning of s 115ZB. However, the substance of each of grounds 1, 3 and 4 is or includes that condition B1 (and/or B1 to B8 together) is void for lack of finality and certainty, because the form and appearance of the development that might evolve from its operation is undetermined. Ground 2 asserts that the Minister failed properly to have regard to the Project’s impact on cultural heritage as a relevant consideration, as is said to be evidenced by the existence of condition B1. Ground 5 asserts that the Approval, particularly by the imposition of condition B1 (and/or B1 to B8 together), was manifestly unreasonable and/or illogical.

47. It is convenient to address the issues that arise as follows:

Are the pre-construction conditions void for lack of finality or certainty?

Are the pre-construction conditions void for failure to consider cultural heritage as a relevant consideration?

If any of the conditions is void, is the void condition severable, or does the Approval fail?

Is the Approval manifestly unreasonable?

Are the pre-construction conditions void for lack of finality or certainty?

48. The essence of the applicant’s main case is that the Approval did not amount to a lawful approval of the SSI under s 115ZB because it lacks finality and certainty, by reason that the impugned conditions – in particular, condition B1 (read with condition A3) – mean that the Minister has not himself approved the development with or without modifications and conditions, but has left it to a subsequent process and other officials to determine potentially material modifications and the final location, appearance and form of the development.

49. There is no general principle of administrative law that the exercise of a statutory power must, in order to be valid, be final or certain. [18] Whether a condition renders a consent or an approval invalid for lack of finality or certainty depends upon the statutory regime under which the approval was given, and in particular the scope of the power to impose conditions; a condition will only be invalid for lack of certainty or finality if it falls outside the class of conditions which the statute expressly or impliedly permits. [19] The issue "always turns on the construction of the particular statute". [20] Where a condition does fall outside what the statute permits, the purported approval is not an approval under the statute at all (unless the condition is severable). [21]

    18. Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [12] per Spigelman CJ; Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGRA 20 at [49] per Preston CJ; Barrington - Gloucester - Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197; (2012) 194 LGERA 113 at [75] per Pepper J.

    19. Ulan Coal Mines at [50] per Preston CJ. See also Barrington - Gloucester - Stroud Preservation Alliance Inc at [76]; Coffs Harbour City Council v The Minister for Planning and Infrastructure [2012] NSWLEC 4; (2012) 187 LGERA 252 at [162] per Sheahan J; Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [133] per Preston CJ; Hurstville City Council v Renaldo Plus 3 Pty Limited [2006] NSWCA 248 at [89]; Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301 at [179].

    20. Winn at [15] per Spigelman CJ. See also Buzzacott at [179].

    21. Ulan Coal Mines at [49]-[50].

50. In the context of applications for development consent under EPA Act Part 4, a number of cases have held that a purported consent which is not final and certain may in some circumstances exceed the statutory limits of the consent authority's power, with the result that there is no valid consent to the development application. [22] As Basten JA explained (with the concurrence of Handley JA and Hunt AJA) in Kindimindi Investments Pty Ltd v Lane Cove Council,[23] this may occur where the consent falls within one of two overlapping categories: where the condition has the effect of significantly altering the development for which the application was made; and/or where the terms of the consent lack finality or certainty such that there is, in substance, no consent:

24 In accordance with principles explained by this Court in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, there may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B (Priestley JA). The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application.

22. Mison v Randwick Municipal Council (1991) 23 NSWLR 734; see also Ulan Coal Mines at [46] per Preston CJ.

23. [2006] NSWCA 23; (2006) 143 LGERA 277.

51. The two categories may overlap where consent is purportedly granted subject to a condition which allows for significant variation of the development proposed.

52. This does not mean that every development consent which leaves some matters open for later decision is invalid, nor does it preclude any retention of flexibility or any delegation to a third party of the function of supervising a later stage of the development; the impugned condition will be invalid only if it leaves open the possibility of a significantly different development from that described in the application,[24] as Spigelman CJ explained in Winn:

    24. Transport Acton Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 at [117]-[118]

16 In Mison, this Court held that the condition there under consideration was such that:

(i) The consent was not a "consent'' by reason of the significance of the issue left for further determination (at 738-739 per Priestley JA and at 739G-740B per Clarke JA); and

(ii) The consent was not a "consent to the application" because it left open the possibility that the further determination would significantly alter the development for which the application was made (at 737A-D per Priestley JA and 740E·F per Clarke JA).

17 However, as Mason P, with whom Sheller JA agreed, said in Transport Acton Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at [117]:

"Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of the development is prohibited."

18 Indeed, as Samuels JA said in Scott v Wollongong City Council [(1992) 75 LGRA 112] at 118:

"... it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or [officer] to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of a proposal with absolute precision."

19 As Mason P pointed out in Transport Action Group v Road and Traffic Authority supra at [117] Mison itself “recognised that questions of degree are involved”. The determination of whether a condition deprives a purported consent of the character of a "consent" or of a "consent to that application” will often be difficult.

53. Similarly, in Buzzacott, the full Federal Court said, in the context of the (CTH) Environmental Protection and Biodiversity Conservation Act 1999:[25]

Decisions such as Mison, Winn, Kindimindi and Ulan Coal Mines go to confirm the observation that, under the general law, the question whether a conditional approval or a condition attached to the approval of some activity is valid, is an exercise in statutory construction. They also confirm that, as a general principle, the approval or a condition will not necessarily be considered invalid because a condition retains in the decision maker some ongoing flexibility in relation to the implementation of an approved activity or because it delegates some authority in relation to the implementation of the decision to some other person or agency.

25. Buzzacott at [179].

54. Under the Part 4 cases, therefore, the essential criterion of invalidity is that the purported exercise of the power to give consent was not a "consent to that application", but to something significantly different (the first category), or which leaves open the possibility that it could be significantly different (the second category). That is because the power in Part 4 provides that a consent authority "is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application". [26]

    26. Currently s 80. Its predecessor, s 91, which is quoted in Mison at 736, was in substantially similar terms.

55. The relevant statutory context in this case is not EPA Act, Part 4, as it was in Mison and Kindimindi, but Part 5.1, and in particular s 115ZB. The Minister's power under s 115ZB to approve or disapprove the carrying out of SSI, with or without modifications and conditions, differs in some respects from the power of a consent authority in Part 4. In particular, s 115ZB provides for the approval of “the carrying out of the State significant infrastructure”, and permits it to be “with such modifications of the infrastructure or on such conditions as the Minister may determine". Thus s 115ZB does not contain, at least directly, a constraint, similar to that in s 80, “to the application”, and it does contain, unlike s 80, a power to approve “with modifications”. The respondents emphasised both of these distinctions.

54. As to the first, the respondents argued that while the focus in Part 4 is on determining a particular application, approval under Part 5.1 is not of a particular application but of the subject SSI, and thus that the circumstance that s 115ZB does not require approval of a particular application means that the criteria of invalidity under Part 4 – that there was no consent to the application – cannot apply directly under Part 5.1. However, this on its own is in my view of limited significance, because – as I have sought to explain when describing the process for assessment of SSI above – the references in s 115ZB(1) to “the State significant infrastructure” and in s 115ZB(3) to “the infrastructure” must, in the context of the preceding sections, be construed as references to the infrastructure proposed to be carried out by the proponent as described in the application and modified in the PIR.

55. However, the significance of the second distinction – the circumstance that modifications are explicitly authorised by s 115ZB(3) – is that it can be no objection to an approval under s 115ZAB that what is approved is different – even significantly different – from what was proposed, so long as the differences are accommodated within the concept of “modifications”. In Transport Action Group,[27] Mason P said that "modification" would not extend to a radical transformation of the proposed activity. His Honour endorsed[28] the comments of Kirby J in Qantas Airways Ltd v Aravco Ltd [29] that:

... To 'modify' connotes something softer [than exclude or restrict]... It means no more than to restrain, to make less rigorous or severe, to alter without radical transformation or simply to qualify something so affected. The essence of modification is that its subject remains in being but is altered in some way falling short of extinguishment. All that is needed is that there be partial changes in the thing modified. Such changes may enlarge or limit it. The word has a very large denotation.

27. Transport Action Group at [107].

28. Transport Action Group at [105].

29. (1996) 185 CLR 43 at 61.

58. Sheller JA said that what was meant by "modify" was a change which might add to or subtract from the proposed activity, the subject of which was less than its wholesale rejection and replacement. [30]

    30. Transport Action Group at [163].

59. Thus s 115ZB permits approval of something different from what is proposed, so long as the differences do not amount to its wholesale rejection and replacement or its radical transformation. This means that the first of the categories identified by Basten JA in Kindimindi, namely "where the condition has the effect of significantly altering the development for which the application was made", does not apply to Part 5.1, at least so long as the differences between what is proposed and what is approved fall within the notion of “modifications”.

60. As to the second Kindimindi category, however, while in the context of s 115ZB the concept of a (purported) condition which leaves open the possibility of a significantly different development from that the subject of the application is not apt, not least because of the Minister’s power of modification, that power of modification is given to the Minister and (unless duly delegated, which was not suggested) must be exercised by the Minister and not left to a subordinate official. As it seems to me, a condition which had the effect that after approval, the proposed infrastructure might as a result of the later decision of a subordinate official be modified (in the sense in which that term is used in s 115ZB), would be invalid – because it would leave the question of modification unresolved. Because the power to approve “with modifications” is one given to the Minister, to be exercised as part of the process of approval, I do not accept that the Minister can delegate the making of a modification to a subordinate. It follows I would not accept that it is an answer to a complaint that the Minister had not exercised the power under s 115ZB where some matter was left to subsequent determination by a subordinate official, merely to show that such determination could not effect a radical alteration to the approved development; that is because, in the context of s 115ZB, the notion of “radical alteration” is a constraint on the Minister’s power of modification, and is not relevant to whether the pendency of one or more unresolved issues deprives an approval of the requisite finality or certainty. However, that is to be distinguished from a modification made by the Minister in the approval, albeit that aspects of its implementation are left to a subordinate official – or, for that matter, to the proponent itself.

61. The Minister argued that the Part 5.1 regime had as a central feature the concept of development which is “State significant infrastructure”, identification of which does not depend on and does not lend itself to detailed specification, but accommodates a high level of generality; that the legal foundation of the Part 5.1 regime was the prohibition in s 115W(1) that a person "is not to carry out development that is State significant infrastructure" unless the Minister has approved doing so under Part 5.1, which necessarily applies to SSI identified at a high level of generality; and that the “State significant infrastructure” referred to in s 115ZB is identified through the application of s 115U, and may be no more detailed than what is identified in a SEPP (s 115U(2)), and even where (as in this case) development is SSI because a proponent which is also the determining authority considers that an EIS is required, the project will still likely be described, at least early in the process, at a relatively high level of generality. In my view, this argument overlooks the place in the scheme of s 115X and fails to appreciate that, as already explained, by the time the Minister comes to exercise the power of approval under s 115ZB, the particular SSI for which approval is sought has been described in the application (as required by s 115X), and potentially refined in the PIR (under s 115Z(6)), so that the infrastructure referred to in s 115ZB is the particular infrastructure for which the proponent seeks approval.

62. Nonetheless, there is no requirement that the proposed infrastructure be defined (in the application, the EIS, the PIR or the approval) to the last nut and bolt by construction plans, leaving no room for subsequent movement to the proponent (or, for that matter, to subordinate officials). Reference has already been made, above, to the observations of Samuels AP in Scott v Wollongong City Council [31] to the effect that conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed are inevitable since it cannot be supposed that a development application can contain ultimate detail, or that a consent can finally resolve all aspects of the proposal with absolute precision. [32]

    31. (1992) 75 LGRA 112 at 118.

    32. Quoted with approval by Spigelman CJ in Winn at [18]; see also Transport Action Group at [117]-[122] per Mason P; Ulan Coal Mines at [78].

63. A consent or approval can leave considerable scope for variation within its outer parameters. Thus a consent to use land for “agricultural purposes” allows the occupier to carry out a diverse range of different agricultural activities; it is not uncertain just because it fails to specify a particular type or types of agricultural activities to be permitted. It was to this concept that Preston CJ was referring in Ulan Coal Mines in pointing out (emphasis added):[33]

71 The words “adjust the scale of mining operations” do not permit the carrying out of mining operations exceeding or otherwise in breach of the permissible outer parameters of what is the project, as defined by the approval and set by the conditions, particularly conditions 2, 5 and 6 of Schedule 2. They simply allow the carrying out of mining operations within, but not exceeding, those parameters.

and:[34]

81 It must also be remembered that any adjustments to mining operations that might be made pursuant to Condition 29 cannot cause the project to depart from the essential outer parameters set by the definition of the project and then other conditions of the approval, notably conditions 2, 5 and 6 in Schedule 2 of the approval.

33. Ulan Coal Mines at [71].

34. Ulan Coal Mines at [81].

64. Moreover, a number of features of Part 5.1 and the context in which it operates suggest that SSI may be described, and approved, with considerable generality and flexibility.

65. First, Part 5.1 is directed towards projects that are large in scale and often take place over a significant period of time. Thus what may be considered a significant aspect of a Part 4 development will not necessarily be a significant aspect of a Part 5.1 development. [35] Such projects are “often complex, extensive and multi-stage", which makes the "retention of ... flexibility appropriate and inevitable". [36] The observations of Samuels AP in Scott v Wollongong City Council referred to above were made in relation to a consent given under the Illawarra Regional Environmental Plan No 1 for a five-storey building, and are even more apt in the context of developments of the kind which Part 5.1 contemplates. To similar effect, in Transport Action Group, Mason P observed that EPA Act, Part 5 extends to projects of vast magnitude and complexity, and that aspects of an activity may require attention over a lengthy time span during which the ground rules may change, and the only certainty may be that there will be uncertainty; accordingly it is both impossible and impractical to define an original activity or modifications thereof with complete finality and specificity, [37] and there is nothing objectionable in deferring to the greater expertise of appropriate Government authorities, or contemplating that such bodies will exercise their statutory powers in the future as particular issues referable to their several field of expertise arise. [38] Accordingly, in the context of State significant infrastructure, it is neither possible nor desirable that every aspect of a project be determined prior to approval, and leaving some matters of detail, within the scope of what has been approved, for later determination or for supervision by persons other than the Minister is necessary and appropriate. Thus within the defined outer parameters, conditions may have the effect of imposing restrictions: using the same example, a condition that before commencing any agricultural activities the proponent must submit for the approval of the Director-General a farm plan depicting what parts of the land would be used for what particular activities, would permissibly allow variations to be required in the detailed implementation of the approval, within the scope or parameters of what the Minister had approved.

    35. Kindimindi at [54] per Basten JA (Handley JA and Hunt AJA agreeing), in relation to projects under former Part 3A of the EPA Act, which was closely analogous in relevant respects to Part 5.1.

    36. Ulan Coal Mines at [80], again in relation to projects under former Part 3A, which was closely analogous in relevant respects to Part 5.1.

    37. Transport Action Group at [124]-[125].

    38. Transport Action Group at [136].

66. Secondly, Part 5.1 contains a mechanism for projects to be modified as they progress. The proponent may apply for a modification to the approval, but the Minister's consent to such a modification is not required if the infrastructure as modified "will be consistent with the existing approval". [39] For the purposes of this provision only, "modification" is defined to include "changing the terms of the approval, including revoking or varying a condition of the approval or imposing an additional condition on the approval". [40] Thus Part 5.1 authorises the proponent itself to make modifications, including revoking and varying conditions of the approval, so long as they are consistent with what the Minister has approved. Although not directly relevant here, this provision reinforces the view that it is consistent with the scheme of Part 5.1 for proposed SSI to be described and approved with considerable generality and allowing considerable flexibility.

    39. EPA Act s 115ZI(2).

    40. EPA Act s 115ZI(1).

67. Thirdly, as has been observed, s 115ZB(3) authorises the Minister not only to approve on conditions, but also to modify, the infrastructure as proposed. Thus the Minister is expressly authorised to change the nature of what is proposed. As the Minister submitted, Parliament can be taken to have understood that the Minister will not, in general, be an architect, engineer, or drafter, and may be taken to have envisaged that a modification made by him/her to the infrastructure would be stated at a level of generality and likely require the development of further plans after approval to give effect to the modification.

68. These features of Part 5.1 and the context in which it operates suggest that s 115ZB was not intended to require that every aspect of a proposed development be determined in the approval, nor to preclude scope for the imposition of modifications and conditions which would allow a project to evolve significantly, even after approval, so long as it remains consistent with and within the scope of the approval – not least because the alternative would, in the context of the type of projects contemplated by Part 5.1, be utterly impracticable.

69. Such a construction of s 115ZB is supported by judicial decisions on the scope of former s 75J in the former Pt 3A of the EPA Act, which was relevantly substantially similar, in context and in terms, to s 115ZB(3). Former s 75J(4) provided: "A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine".

70. Ulan Coal Mines concerned an approval under Part 3A for a coal mine. A condition of the approval (condition 29), imposed under s 75J(4), required adjustment of the scale of the mining operations to match available water supply. Ulan contended that condition 29 was void for uncertainty on the basis, inter alia, that it did not specify the precise way in which the proponent had to modify its mining operations, nor specify the parameters for the modification of the project. [41] His Honour concluded that s 75J "neither expressly nor impliedly requires, in order for a condition to be valid, that a condition set the parameters for adjustment of a project to achieve an outcome or an objective specified in the conditions". [42] His Honour observed that the power to impose conditions under s 75J was not confined in the manner specified under Part 4, but was expressly stated to be able to be exercised "with such modifications of the project'' and ‘‘on such conditions” as the Minister may determine; [43] that the power was a wide one and there was no warrant for reading it down by imposing a limitation that the parameters of any adjustment to the project to meet any outcome or objective specified must also be specified; [44] that 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 in accordance with the statutory scheme; [45] and that, given the scale and complexity of projects subject to approval under Part 3A, the retention of flexibility was "appropriate and inevitable". [46]

    41. Ulan Coal Mines at [73].

    42. Ulan Coal Mines at [74].

    43. Ulan Coal Mines at [74].

    44. Ulan Coal Mines at [75].

    45. Ulan Coal Mines at [78].

    46. Ulan Coal Mines at [80].

71. Subsequent cases, following Ulan Coal Mines, have established a "separate line of authority” – that is, separate from the Part 4 cases – in respect of Part 3A approvals. [47] In Pittwater Council v Minister for Planning,[48] Pain J observed that a number of cases emphasise:

... that the power to modify [projects under s.75J(4)] together with the complexity of projects considered under Pt 3A means the principles in Mison developed in relation to Pt 4 will not apply as strictly to Pt 3A, but that a requirement for certainty remains, as recognised in Ulan and Rivers SOS. The necessary degree of flexibility will depend on the facts in each case, as recognised in Transport Action Group in the context of Pt 5 and in Ulan and Rivers SOS in the context of Pt 3A.

47. Barrington - Gloucester - Stroud Preservation Alliance Inc at [74] per Pepper J. See Rivers SOS Inc; Pittwater Council v Minister for Planning [2011] NSWLEC 162; (2011) 184 LGERA 419; Coffs Harbour City Council v The Minister for Planning and Infrastructure.

48. (2011) 184 LGERA 419 at [69]; followed in Barrington - Gloucester - Stroud Preservation Alliance Inc at [84].

72. In the context that s 115ZB was, relevantly, a statutory re-enactment of former s 75J(4), after the decisions to which reference has just been made, Parliament should be taken to have intended it to have the operation those decisions gave to its predecessor.

73. The Part 3A cases do not deny that some requirement for certainty remains, but focus attention on the question whether the condition falls outside the express or implied confines of the power to impose conditions conferred by s 115ZB. Essentially, the function of a s 115ZB approval is to remove what it approves from the scope of the prohibition on carrying out SSI contained in s 115W. To do so, it must sufficiently define what has been approved, so that the boundary between what is permissible approved SSI and what remains prohibited can be discerned. That the approval leaves to the proponent – or for that matter to a subordinate official – room for variation in its implementation, within those defined outer limits or parameters, does not mean that what has been approved so lacks certainty as not to amount to an approval. There will only have been a failure effectively to exercise the s 115ZB power to approve the carrying out, with modifications or conditions, of the SSI (as understood in the context of Part 5.1) if it is not possible to discern, from the terms of the approval, the scope or outer limits – the parameters – of what is permissible. While any modifications to the parameters defining proposed infrastructure must be made in the approval and not deferred and delegated to some subsequent process and/or subordinate official, nonetheless just as a condition may express an outcome or objective to be achieved without identifying the parameters for it other than the satisfaction of an official such as the Director-General, so must it be possible for a “modification” to be expressed in terms of an outcome or objective, the measure of achievement of which may be the satisfaction of such an official. That is not a delegation of the power to approve with modification – the Minister specifies the modification, albeit in terms of an objective, leaving to subordinate officials the supervision of its implementation.

74. Thus so long as it defines the outer parameters of what is permissible, an approval under s 115ZB may be given at a relatively high level of generality, so as to admit of variations of detailed design within the scope of the approval. Variations of detailed design within the boundaries of what is approved are not modifications of the SSI within s 115ZB, but within the scope of the approved SSI. While the power of modification under s 115ZB must be exercised, if at all, by the Minister in the course of the approval, it may be exercised by stating an outcome or objective to be achieved, to the satisfaction of another official or agency.

75. It is in that context that the impugned conditions – and in particular Condition B1 – fall to be examined. The applicant argued that while authorities such as Transport Action Group and Ulan authorised “adaptive management conditions” in the context of complex long-term projects in which there was uncertainty as to future conditions, they were to be distinguished in the present case, as the Project was "not a large project to be carried out over an extended period” in which the best environmental outcome could be achieved by deferring some matters of detailed design until knowledge of the site had improved through the course of carrying out the development, but “a single bridge and approach roads in a single location, where the implications could be known in advance",[49] and Part B of the Approval did not contain adaptive management conditions of the kind discussed, for example, in Ulan Coal Mines, [50] Buzzacott [51] and Winn v Director-General. [52] However, I cannot accept that the construction of the scope of s 115ZB authorised by those cases – including in particular that it admits of a general and flexible description of the approved SSI and accommodates conditions that require future variations, within the scope of the outer limits of what has been approved, to achieve a stated object to the satisfaction of an officer such as the Director-General – is not available in the present context because the Project is not so complex as some that fall within Part 5.1. The magnitude and scope of the SSI under consideration cannot control whether or not an approval under s 115ZB can admit of such flexibility, which must be resolved by the proper construction of that section, and not by reference to the particular development under consideration, or comparison with other larger projects that might be encountered. The relevance of the circumstance that s 115ZB is likely to cover a wide range of large, complex and long-term projects involving a degree of unpredictability is that it favours a construction of s 115ZB which permits generality and flexibility, not least because requiring every aspect to be determined in the approval would be impracticable. But if – as Ulan Coal Mines indicates - s 115ZB is broad enough to authorise an approval to be granted which involves retention of practical flexibility, by leaving matters of detail relating to some aspects of the development for later determination by a delegate, [53] then that flexibility is available in relation to projects approved under s 115ZB regardless of their scale. The breadth of the power conferred by the statutory provision is not dependent on the features of the particular project under consideration.

    49. Applicant’s submissions, at [50]. The Project is nonetheless a substantial one, with a budget of $65 million, to be carried out over a period of 20 months, using 110 personnel.

    50. Ulan Coal Mines at [34] to [40].

    51. Buzzacott at [199] to [225].

    52. Winn at [36] to [39].

    53. See Ulan Coal Mines at [78], [80].

116. Part 7.2 dealt with Aboriginal heritage, and includes discussion of potential impacts, and environmental management measures including archaeological salvage. Part 7.4 dealt with visual amenity, urban design and landscape, including aspects of heritage, including in relation to Thompson Square; the urban design objectives include reference to heritage matters, with the reduction of the Project’s impact on Thompson Square to be part of the detailed design phase. In Part 7.8, which deals with land use, property and socio-economic issues, heritage impacts are identified as the main potential socio-economic impact. Chapter 10 sets out a detailed table of environmental management measures, many of which deal with heritage issues.

117. Chapter 11 (Project justification and conclusion) assessed the Project against the various project objectives and criteria. The conclusion plainly acknowledged that the Project would have significant adverse heritage impacts on Thompson Square (emphasis added):

While Windsor bridge replacement project addresses the project objectives it would result in significant impacts on the heritage vistas of Thompson Square Conservation Area and its archaeological resources. These impacts have been minimised as much as possible through reducing the height of the bridge, selecting a bridge type that has a lower visual profile and including appropriate urban design features and landscaping, however, they cannot be ameliorated completely. These impacts are unavoidable unless an alternative option was selected, however the alternative options would have other impacts and do not provide as high value for money as the project.

… Consequently a road from George Street to either the wharves or the bridge has been a constant feature of Thompson Square, although the alignment, size and layout of roads in Thompson Square has varied considerably over 200 years. While other options for a river crossing at Windsor may have less or no impacts on Thompson Square, they would generally result in noise, traffic and visual amenity impacts on residential areas which do not currently experience these issues – as well as other environmental impacts. Also many of the alternative options would cost significantly more than the project and benefits that they may provide do not justify the additional costs. …

There are a number of benefits to Thompson Square from the project including the consolidation and creation of a larger green space area in Thompson Square parkland … .

118. Issues relating to heritage impacts – both Aboriginal and non-Aboriginal – were raised in numerous submissions that followed public exhibition of the EIS – including those of the Heritage Council, the Office of Environment and Heritage, and Hawkesbury Council – that were before the Minister. The Submissions Report and Preferred Infrastructure Report proposed changes to the Project design in response to heritage-related concerns expressed in submissions, including increasing the clearance of the new bridge over the Terrace (at the southern end, adjacent to Thompson Square, resulting in an increase in the visual and physical presence of the bridge viewed from the Square), changing the location of bridge piers, and various noise mitigation measures.

119. Following the shortcomings identified in the Independent Heritage Review, the Department asked RMS to prepare a draft CMP which outlined "RMS's intention to construct the project in a manner which as far as practicable conserves the unique heritage value of the project area via specific project design features and implementation of other mitigation measures". The Executive Summary of the Director-General’s report observed that key issues identified arising from submissions were traffic, visual amenity, heritage, and consideration of project alternatives and consultation; and that assessment had included the EIS, Submissions Report/Preferred Infrastructure Report, and various independent reviews, including the Heritage Review. It also referred to the negative impacts on the heritage fabric and character of Thompson Square and the strong views expressed in submissions relating to heritage impacts, concluding that the Project was consistent with the broader public interest given its benefits, and that the heritage impacts could be managed by the imposition of conditions.

120. It is true that the fact that all this, and more, was in the documentation before the Minister, does not prove that he gave consideration to heritage impact in the relevant sense. That there was extensive consideration of heritage matters throughout the assessment process before the matter reached the Minister does not necessarily mean that the Minister gave them similar consideration. However, it is for the applicant to establish that he did not do so, and that is all the more difficult an inference to draw where the material before him was replete with references to it; where the Director-General’s report presented the cultural heritage issue and explained the Department's rationale for concluding that, while the heritage impacts were significant, they could be mitigated by conditions, and were justified in the broader public interest; and where the heritage issues were also presented and addressed in the Department’s briefing note to the Minister, which would ordinarily be the first document one might expect the Minister to read.

121. It is also true that the adequacy of that material, and especially the manner in which heritage was dealt with in the EIS, was the subject of strong criticism in the Independent Heritage Review, and it is appropriate to infer, as I have, that the Minister substantially accepted that criticism. But acceptance that the heritage assessment was significantly defective in some respects – even to the point that the full heritage significance of Thompson Square had not been appreciated – does not equate to a failure to consider heritage impacts. The circumstances that the available evidence pertaining to a matter which a decision-maker is required to consider is imperfect does not equate to a failure to consider the matter. While I have accepted that heritage impact was a mandatory relevant consideration, requiring genuine and not merely colourable consideration of the issue, that does not mean that proper consideration of it required the Minister to identify the heritage value, develop heritage design principles, and investigate and approve all specific mitigation measures and any changes to the Project to mitigate heritage impacts, as a heritage consultant might, before giving his approval. It would be inconsistent with the conclusion that an approval may leave open considerable scope for variations within its limits, and with the observations in Transport Action Group and Ulan Coal Mines about the necessity for flexibility in approvals for projects of the kind which fall for assessment and approval under Part 5.1, to treat s 115ZB as mandating such details. And it would go far beyond requiring what is relevantly involved in “considering” a matter, so as impermissibly to scrutinise the correctness of the consideration, the sufficiency of the evidence supporting it or the weight of the evidence against it, and the regularity or irregularity of the manner in which the decision maker proceeded.

122. The material before the Minister unambiguously indicated that while the preferred option had advantages over the alternatives in other respects, it would have significant adverse heritage impacts, which could not be avoided but might be mitigated by design refinement. The Minister was confronted with a choice between approving the Project despite its acknowledged adverse impacts on heritage, subject to conditions intended to mitigate those impacts so far as practicable; or disapproving the Project, which would entail pursuit of one of the alternatives, with its attendant impacts. In that context, adoption of one course does not imply a failure to have regard to considerations that point in the other direction, but only that those considerations have been outweighed by others. By far the better inference is that the Minister accepted the Director-General’s view that while the heritage impacts were serious, and while the heritage assessment was imperfect, the impacts were outweighed by other factors, and there was some scope for mitigating the heritage impacts in implementation; condition B1 was directed to addressing some of the identified imperfections, and achieving that mitigation by providing for the refinement of the detailed design through the CMP. That does not amount to a failure to consider adverse impact on cultural heritage.

123. To the contrary, in the absence of reasons – which the Minister was not bound to give, and which were not requested – the best indications are to be found in the terms of the Approval and its conditions. As has been observed, the Approval itself provided for particular modifications to the Project to address concerns pertaining to heritage, raised in the course of the assessment process. Thus, consistent with the Director-General’s recommendations the increased clearance of the bridge over the Terrace as proposed in the PIR was not approved due to adverse visual impact, and terracing was not approved because it was "considered to potentially result in a negative visual impact and change in landscape character within the project area". The very existence of the impugned conditions are themselves a powerful indication that the Minister not only adverted to, but genuinely considered – and addressed, by those conditions – the project’s impact on cultural heritage, and the identified shortcomings in the heritage work undertaken to that point. [79] And that the Minister had regard to heritage impacts is also powerfully evidenced by the statement of the objectives of the pre-construction conditions at the outset of Part B, which explains that the very purpose for their imposition included minimising impacts on heritage sites – including sites within Thompson Square – and to enhance and conserve Thompson Square and listed heritage items.

     79. Inclusion of a condition dealing with a matter is evidence that that matter has been considered by the decision-maker: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 at [55]-[57] (Full Federal Court).

124. Thus even though the Minister may have accepted that the heritage assessment was deficient, he did not fail to appreciate, and to take into account, that approving the SSI would involve serious adverse heritage impacts, particularly for Thompson Square. That he imposed conditions addressing the project’s impact on cultural heritage, and the identified shortcomings in the heritage assessment, with the objective of minimising impacts on heritage sites and enhancing and conserving Thompson Square, refutes the contention that he did not consider the adverse impact of the project on cultural heritage.

If any of the conditions is void, is the void condition severable, or does the Approval fail?

125. The applicant submits that because heritage impact was a matter fundamental to the assessment of the Project in the statutory context described above, and having statutory significance as a "key issue", condition B1 was integral to the approval, and cannot be severed if invalid. While the Minister admits that the impugned conditions if invalid are not severable, RMS makes no such concession. The test of severability is to be applied by the Court as part of the process of interpretation, and the opinion of the authority which made the instrument sought to be impugned is not determinative. [80] Thus the Minister’s concession that the conditions if invalid are not severable is not dispositive of this issue.

     80. This is illustrated by the result in Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695, in which a condition of a development consent issued by the appellant Council was found to be invalid but severable, despite the Council's argument that it would not have granted consent in the absence of that condition: at [168], [176].

126. An approval under s 115ZB is an instrument made under the EPA Act. (NSW) Interpretation Act 1987, s 32(2), relevantly provides:

32   Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

…

(2) ... If any provision of an instrument ... would but for this section be construed as being in excess of the power conferred by the Act under which it was made:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the instrument ... shall not be affected.

127. Notwithstanding s 32, a condition cannot be severed if its severance would result in the residue operating differently to the manner in which the whole would have operated. [81] This, rather than whether the condition under challenge is fundamental or goes to the root of the planning permission itself, [82] is the test to be applied.

     81. Maitland City Council v Anambah Homes at [166]-[167] per Tobias JA (with whom Spigelman CJ and Ipp JA concurred), citing Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 at 101E per Cole J, and Wechsler v Auburn Council (1997) 130 LGERA 134 at 137 per Talbot J.

     82. Cf Byron Shire Businesses For The Future Inc v Byron Council [1994] NSWLEC 159 (30 September 1994) per Pearlman CJ, citing Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72, Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130, and Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13.

128. Removal of condition B1 would permit the Project to proceed to construction without the measures intended to mitigate its adverse impacts on cultural heritage. Essentially, measures designed and intended to mitigate the adverse impact would be removed. Prima facie, that would result in the Approval operating in a manner differently from that intended. However, RMS submitted that if condition B1 were severed, issues of heritage impact management would still be addressed by condition D5(e), which requires preparation of a Construction Heritage Management Sub-plan covering ground similar to the CMP referred to in condition B1, so that deletion of condition B1 would not result in the residue of the Approval operating substantially differently.

129. Condition D5(e) requires that RMS prepare and (following approval) implement, as part of a “Construction Environmental Management Plan (CEMP)” outlining the environmental management practices and procedures to be followed during construction of the project, a Construction Heritage Management Sub-plan prepared by appropriately qualified heritage consultants detailing how construction impacts on heritage will be avoided, minimised and managed. Like the CEMP generally, this is concerned more with the impact of the construction process and activities than with the permanent impact of the Project. Although I accept that there is some overlap, condition D5(e) does not cover the same territory as condition B1. For example, it does not stipulate that the Construction Heritage Management Sub-plan must include an identification of the heritage value of Thompson Square, the development of heritage design principles for the Project to retain the heritage significance of Thompson Square; specific mitigation measures for Thompson Square; and changes to the detailed design of the Project to mitigate heritage impacts. Moreover, it operates in respect of the construction process, whereas condition B1 is directed to matters to be attended to prior to commencement of any construction.

130. Accordingly, in my view, deletion of condition B1 would result in the residue of the Approval operating differently to the manner in which the whole would have operated. Importantly, the measures intended to mitigate adverse heritage impacts before construction commences, including refinement of the detailed design, would be removed. If invalid, condition B1 would not be severable.

131. Condition B1 is the highpoint of the applicant’s case on invalidity, and it is not necessary further to consider the severability of the other impugned conditions, although it may be acknowledged that there is a stronger case that they, or at least some of them, would if invalid be severable.

Is the Approval manifestly unreasonable?

132. The burden of ground 5 is the contention that the Minister’s decision to give the Approval was “manifestly unreasonable” in the Wednesbury sense, that is to say one that no reasonable person in his position could have made. [83] The Wednesbury doctrine was the subject of consideration by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; 87 ALJR 618, in which French CJ observed (references omitted):

     83. Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

Reasonableness

23 Every statutory discretion, however broad, is constrained by law. As Dixon J said in Shrimpton v The Commonwealth:

“[C]omplete freedom from legal control, is a quality which cannot ... be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force."

Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. Where the discretion is conferred on a judicial or administrative officer without definition of the grounds upon which it is to be exercised then:

"the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case."

That view, however, must be reached by a process of reasoning.

24 Every discretion has to be exercised, as Kitto J put it in R v Anderson; ex parte Ipec Air Pty Ltd, according to "the rules of reason". His Honour, paraphrasing Sharp v Wakefield, said:

“a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself''.

…

28 ... After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

…

30 The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision­maker. Gleeson CJ and McHugh J made the point in Eshetu [Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611] that characterisation of somebody' s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, ''may have no particular legal consequence".

133. Gageler J (at [105]) referred to the statement in Dunsmuir v New Brunswick [2008] 1 SCR 190 that review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process", but also with ''whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law".

133. Thus there is limited room for Wednesbury unreasonableness where "reasonable minds may reach different conclusions about the correct or preferable decision", [84] or the decision falls within the range of possible acceptable outcomes. [85] This is particularly so where questions of opinion, policy or taste, such as frequently arise in the planning context, are involved; in that context, the scope of the Wednesbury principle is extremely confined, as Jagot J explained in King, Markwick, Taylor & Ors v Bathurst Regional Council [2005] NSWLEC 505; (2006) 150 LGERA 362:

53 Where a challenge is brought on the ground of manifest unreasonableness (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223), the applicable principles are clear. There is a "world of difference between justifiable opinion and sound opinion". Whether an opinion is sound or not “is not a question for decision by a court” (The Council of the City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 323). Where an opinion relates to a matter of "opinion or policy or taste”, the authority will be "left with a very wide discretion which cannot be effectively reviewed by the courts" (Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 and 118 -119. Also, Puhlhofer and Another v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484 at 518). The application of the "Wednesbury" principle requires the exercise of proper judicial restraint (Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 at [241]). The impugned decision "must amount to an abuse of power ... or be so devoid of plausible justification that no reasonable person could have taken that course" (Woolworths Ltd v Pallas Newco Pty Ltd and Another [2004) NSWCA 422; (2004) 61 NSWLR 707 at {27] and [91]). The ground must be "extremely confined'', or else "the gate to judicial review of the merits of a decision or action" would be opened (Attorney-General for the State of New South Wales v Quin (1989) 170 CLR 1). Even a perverse finding of fact does not constitute an error of law, at least where an appeal is limited to "errors of law" (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. See also Bruce v Cole (1998) 45 NSWLR 163 at 189).

84. Li at [28] per French CJ.

85. Li at [105] per Gageler J.

135. So while it may be true to say, as the applicant submits, that Minister’s discretion was not at large, such as to permit him to make any decision at all, but was constrained by the requirement that he make a rational decision conforming to the requirements of Part 5.1, it cannot be challenged on the basis that many – perhaps most – others would have made a different decision. The applicant undertakes the burden of showing that the decision is one which "lacks any evident and intelligible justification". [86]

     86. Li at [75]-[76] per Hayne, Kiefel and Bell JJ.

136. To that end, the applicant submits that, whereas the very cause and purpose of RMS seeking approval from the Minister was its impact upon cultural heritage, which was a "key Issue" identified by RMS and the Director-General under the statutory scheme, proper assessment of the impact on cultural heritage was deferred to the operation of conditions B1 to B8, and in the statutory context the imposition of the condition B1 was devoid of plausible explanation:

It was the Minister's obligation to make the decision either to drive this arterial road through the heart of the Thompson Square Conservation Area, or to refuse to allow that to happen. Further, if the Minister was of the opinion that some modification to the proposal would make It acceptable in terms of impact upon Thompson Square, then the Minister was not only entitled to determine but required by the terms of s 115ZB(3) to determine what that modification would be. The limits of rationality for the decision maker in this context is expressly contained within the requirement of s 115ZB(3) for the Minister to make "such modifications of the infrastructure or on such conditions as the Minister may determine".

To defer all the elements of assessment of impact on cultural heritage by the operation of condition B1 abrogated the responsibility cast upon the Minister to make the determinations required in the exercise of the discretion conferred by s 115ZB and was for that reason as well unreasonable.

137. As will by now be apparent, I do not accept that the Minister deferred, by condition B1 (and/or conditions B1-B8 together), to the heritage consultant and the Director-General, “all the elements of assessment of impact on cultural heritage”. Nor do I accept that the Minister failed to “make the decision either to drive this arterial road through the heart of the Thompson Square Conservation Area, or to refuse to allow that to happen”: the Minister made the decision that the road would go through Thompson Square, and to accept the inevitable consequential adverse impacts on cultural heritage. Coupled with that, he imposed conditions intended to minimise the impacts and save what could be saved.

138. The context for that decision was provided by the inadequacies of the existing Windsor Bridge to meet present and future needs. The EIS demonstrates that ten potential courses of action (including doing nothing) were developed and examined. Each presented a variety of issues and a variety of adverse impacts. Each was evaluated against a list of desired project outcomes. The ultimately preferred course was acknowledged to have significant adverse impacts on cultural heritage, but was otherwise considered the best, performing well against most of the project outcomes. If it were not approved, one of the alternative courses of action would have to be pursued. While they might avoid or reduce adverse cultural heritage impacts, each had other disadvantages. It was suggested that further mitigation of the identified heritage impacts might be achieved through a conservation management plan and refinement of the Project in the detailed design phase.

139. The Director-General’s report to the Minister concluded that the Project would have a number of immediate and long-term benefits, including traffic benefits, upgrading the bridge and approaches to modern engineering and safety standards, increased pedestrian and cycling access across the Bridge and to the southern foreshore, a consolidated Thompson Square and more usable public domain resulting from moving the road through the Square to the south, amenity improvements in Thompson Square, and an enhanced visual setting of the Project area. The negative impacts on the heritage fabric and character of Thompson Square were acknowledged, as were the strong views expressed in submissions relating to heritage impacts. However, the report expressed the view that the Project was consistent with the broader public interest given its benefits, and that the heritage impacts could be managed by the imposition of conditions.

140. The Minister therefore had to decide, ultimately, whether in the context of the various alternative courses of action (including doing nothing), and the risks and disadvantages associated with them, the preferred course should be approved, and conditions imposed to provide for the further mitigation of impacts on heritage in the detailed design phase. Approval would inevitably have heritage impacts, particularly on Thompson Square, which would be unavoidable though they might be mitigated by further refinement in the detailed design phase. To avoid such impacts would necessitate an alternative course of action, which would have its own relative disadvantages – including, for example, reduced traffic capacity, reduced public safety, and/or greater cost.

141. In that context, the Minister’s decision to approve the Project, generally in the form proposed, but to adopt the suggestion that a conservation management plan be required in order to provide for further mitigation measures in the detailed design phase, reflected a judgment that the utilitarian and economic advantages of the preferred course outweighed its cost to cultural heritage, but what if anything could still be done to mitigate the heritage impacts should be done. The imposition of condition B1, far from being devoid of plausible explanation, is explained by the intention of putting in place measures to minimise the adverse heritage impacts that the Project would inevitably occasion and rescue what could be saved, including by refinement of the Project in the detailed design phase, and addressing some of the deficiencies that had been identified in the heritage assessment to date. Such a decision was plainly within the bounds of possible acceptable outcomes. It was one of the decisions rationally open to the Minister. That many, even most, might have decided the question differently would not make the decision unreasonable in the legal sense.

Conclusion

142. My conclusions may be summarised as follows:

143. So long as it defines the outer parameters of what is permissible, an approval under s 115ZB may be given at a relatively high level of generality, so as to admit of variations of detailed design within the scope of the approval. Variations of detailed design within the boundaries set by an approval are not modifications of the SSI within s 115ZB, but fall within the scope of the approved SSI. While the power of modification under s 115ZB must be exercised, if at all, by the Minister in the course of the approval, it may be exercised by stating an outcome or objective to be achieved to the satisfaction of another official or agency.

144. Here, the outer parameters of the Project are defined in the Approval, which fixes the location of the new bridge in a specified location, with approaches from each side via specified routes, in the case of the southern approach through and along the eastern side of Thompson Square. Those essential elements cannot change through the operation of condition B1. The Conservation Management Plan cannot enlarge the parameters of what has been approved, though it might have the effect of restricting what can be done within those parameters. While variations may be required to the detailed design, that will not involve any modification, within s 115ZB(3), to the State significant infrastructure as approved. The new bridge will remain one in the same location, with its southern approach through and along the eastern side of Thompson Square. There is no uncertainty or lack of finality in what the Minister has approved, although there is room for movement within its parameters.

145. The Minister was bound to consider the Project’s impact on cultural heritage. However, while that requires genuine consideration and not mere advertence or colourable consideration, it does not open to review the sufficiency of the evidence before the Minister or the rigour of his analysis, and it did not require the Minister, before giving his approval, to identify the heritage values and develop heritage design principles and mitigation measures, as a heritage consultant might. Even though the Minister may have accepted that the heritage assessment was deficient, he did not fail to appreciate, and to take into account, that approving the Project would involve serious adverse heritage impacts, particularly for Thompson Square. That he imposed conditions addressing the Project’s impact on cultural heritage, and the identified shortcomings in the heritage assessment, with the express objectives of minimising impacts on heritage sites and enhancing and conserving Thompson Square, refutes the contention that he did not consider the adverse impact of the project on cultural heritage.

146. Deletion of condition B1 would result in the residue of the Approval operating differently from the manner in which the whole would have operated, as the pre-construction measures intended to mitigate adverse heritage impacts, including refinements of the detailed design, would be removed. In other words, the scope for requiring variations within the boundaries of the Approval, to mitigate heritage impacts, would be gone. If invalid, condition B1 would not be severable.

147. The Minister’s decision to approve the Project, generally in the form proposed, but to adopt the suggestion that a conservation management plan be required in order to provide for further mitigation measures in the detailed design phase, reflected a judgment that the utilitarian and economic advantages of the preferred course outweighed the cost to cultural heritage, but what could be done to mitigate the heritage impacts should be done. The imposition of condition B1, far from being devoid of plausible explanation, is explained by the intention of addressing some of the identified deficiencies in the heritage assessment, and putting in place measures to minimise the adverse heritage impacts that the Project would inevitably occasion and rescue what could be saved, including by refinement of the Project in the detailed design phase. Such a decision was plainly within the bounds of possible acceptable outcomes. It was one of the rational decisions open to the Minister. That many, even most, might have resolved the conundrum differently would not make the decision unreasonable in the legal sense.

148. All the grounds of review therefore fail. The Court orders that the summons be dismissed.

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Endnotes

Amendments

28 October 2015 - Remove import error references at paras 32, 62, 97

Decision last updated: 28 October 2015