Gales Holdings Pty Limited v Minister for Planning

[2006] NSWLEC 347

Set aside by Appeal: [2006] NSWCA 212

Land and Environment Court

of New South Wales

CITATION:

Gales Holdings Pty Limited v Minister for Planning & Another [2006] NSWLEC 347

PARTIES:

APPLICANT
Gales Holdings Pty Limited

FIRST RESPONDENT
Minister for Planning

SECOND RESPONDENT
Australian Bay Lobster Producers Pty Limited

FILE NUMBER(S):

40246 of 2006

CORAM:

Talbot J

KEY ISSUES:

Construction and Interpretation :- State significant development - effect of transitional provisions.

Development consent:- application determined by Minister as wrong consent authority.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 76A(7), (8), s 80
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 Environmental Planning and Assessment Amendment (Major Projects – Transitional Provisions) Regulation 2005
Environmental Planning and Assessment Regulation 2000 cl 8J(6), (7)
State Environmental Planning Policy No. 62 – Sustainable Aquaculture s 76A(7), (8)
State Environmental Planning Policy (State Significant Development) 2005
State Environmental Planning Policy (Major Projects) 2005
Tweed Local Environmental Plan 2000

CASES CITED:

Hunter Resources Ltd v Melville (1988) 164 CLR 234;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;
State of South Australia v Tanner (1989) 166 CLR 161

DATES OF HEARING:

05/06/2006, 06/06/2006, 13/06/2006, 14/06/2006 (written submissions)

 
DATE OF JUDGMENT: 

06/23/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr T F Robertson SC with Mr J E Lazarus (Barrister)
SOLICITORS
Woolf & Associates

FIRST RESPONDENT
Mr N J Williams SC with Ms H P Irish (Barrister) and Ms A M Mitchelmore (Barrister)
SOLICITORS
Department of Planning

SECOND RESPONDENT
Dr J E Griffiths SC
SOLICITORS
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

23 June 2006

40246 of 2006 Gales Holdings Pty Limited v Minister for Planning and Another

JUDGMENT

Introduction

1 Talbot J: Australian Bay Lobster Producers Pty Ltd (“the second respondent”) is a developer who proposes to construct facilities for the breeding and growing of “bay lobsters” (Thenus spp.) a lobster species well known to seafood gourmets as the Moreton Bay Bug. The site for the proposed development is at Cudgen in the Tweed local government area. It includes the installation and operation of a tank-based commercial aquaculture facility and associated seawater supply works on privately owned land, a Crown Reserve and Council Public Reserves within the floodplain in the catchment of the Tweed River. The public land includes a sewerage plant site and is generally located below the high water mark of the adjacent Pacific Ocean.

2 That part of the land which is zoned under the Tweed Local Environmental Plan 2000 (“the Tweed LEP”) is in various zones comprising zones 1(a) General rural; 1(b)(2) Agricultural Protection; 4(a) Industrial; 5(a) Special Uses (Drainage) and (Stormwater Management and Sewerage Reticulation); 6(a) Open Space and 7(1) Environment Protection (Habitat).

3 The extended area to be utilised in the various zones is as a consequence of the requirement to construct a sub sand seawater intake and pumping facility within Crown Reserve 1001008 at Kingscliff and seawater intake and return pipelines to and from the property within both Crown and Public Reserves.

4 The respondents contend that the subject development is development for the purposes of “tank-based aquaculture” as defined in cl 4(1) of State Environmental Planning Policy No. 62 – Sustainable Aquaculture (“SEPP 62”) as follows:-

tank-based aquaculture means intensive aquaculture undertaken exclusively in tanks, but not including natural water-based aquaculture.

5 On 21 December 2005 the Minister for Planning (“the first respondent”) determined a development application submitted by the second respondent in respect of the proposed tank-based aquaculture facility. Consent was granted on the basis that it was State significant development and permissible pursuant to SEPP 62 subject to the conditions set out in Schedule 2 of the development consent. The validity of that development consent is now challenged by Gales Holdings Pty Limited (“the applicant”).

Summary of relevant background and issues

6 On 3 September 1999 the Minister declared pursuant to s 76A(7) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) specified classes of development to be State significant development. The classes of development included:-

An aquaculture industry , if in the opinion of the consent authority,

1. the project has been identified as being of State or regional significance in a strategic plan adopted by the Director General; or
2. the project will employ more than 20 people; or
3. the project is to be located in an “environmentally sensitive area of State significance”.

7 The declaration was revoked by notice published in the NSW Government Gazette by the Minister on 10 June 2005.

8 SEPP 62 was made on 25 August 2000. There is no issue between the parties that its provisions apply to the subject development application. The development application was made by the second respondent lodging it with the Minister on 15 November 2004. The Minister purported to grant consent on 30 June 2005.

9 When the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (“the Planning Reform Act”) came into effect on 1 August 2005 s 76A(7) and (8) of the EPA Act were repealed together with other provisions relating to State significant development and replaced with Part 3A Major Infrastructure and Other Projects. The Environmental Planning and Assessment Amendment (Major Projects – Transitional Provisions) Regulation 2005 is expressed to commence on the date of assent to the Planning Reform Act, namely 16 June 2005, although it was not published in the NSW Government Gazette until 7 December 2005. By the Major Projects - Transitional Provisions Regulation 2005 cl 8J(6) and(7) were added to the Environmental Planning and Assessment Regulation 2000 as follows:-

(6)Clause 89 of Part 17 to Schedule 6 to the Act extends to development applications pending on the commencement of Part 3A of the Act for development that was State significant development on the commencement of the State Environmental Planning Policy (State Significant Development) 2005.

(7)If:

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

(b) the Minister is required to form an opinion that the development is State significant development in order to determine the application on that basis (but the Minister had not, before that commencement, formed an opinion on the matter),
the Minister may, after that commencement, form an opinion that the development was, at the time the application was made, State significant development. In that case, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.

10 The respondents do not place any reliance on cl 8J(6).

11 State Environmental Planning Policy (State Significant Development) 2005 (“SEPP (SSD)”) which was introduced on 25 May 2005 was also effectively amended at 1 August 2005 and renamed SEPP (Major Projects) 2005 to accord with and as a consequence of the introduction of Part 3A. SEPP (SSD) does not apply in respect of the determination of a development application that was made but not finally determined before the commencement of the Policy (cl 14(1)). The respondents do not rely on SEPP (SSD).

12 On 7 December 2005 (being the same days the Major Projects – Transitional Provisions Regulation 2005 was published in the Gazette) this Court declared the consent granted on 30 June 2005 void and of no effect as follows:-

The determination of Integrated DA No. DA-282-11-2004-i lodged by the Second Respondent for the construction and operation in the Tweed local government area of a commercial Australian Bay Lobster aquaculture facility and associated seawater supply works, made by the Minister for Infrastructure and Planning, dated 30 June 2005, is void and of no effect.

13 On 21 December 2005 the Minister again determined to grant consent in respect of the development application lodged on 15 November 2004 pursuant to s 80 of the EPA Act subject to conditions on the basis that it was for State significant and Integrated development. The Minister claims that when he granted the development consent on 21 December 2005 he had relevantly formed the opinion that the development was, at the time the application was made, State significant development. He therefore took into account the provisions of SEPP 62. As I have already said there is no issue between the parties that SEPP 62 applies to the development.

14 Clause 11 of SEPP 62 provides that development to which the Policy applies, that is not permissible under the Policy with development consent, is prohibited.

15 Pursuant to cl 7(2) of SEPP 62 a person may carry out tank-based aquaculture development with development consent if in the opinion of the consent authority it complies with the site location and operational requirements set out in Schedule 1. The site location requirements for the North Coast Region include the Tweed local government area (where the subject land is situated) and for tank-based aquaculture areas zoned for rural purposes or zoned for industrial purposes. Accordingly only part of the land strictly complies with the site location requirements, namely those parts of the land within the industrial and general rural zones.

16 Clause 9 of SEPP 62 provides that the consent authority for development to which the policy applies (other than State significant development) is either the consent authority designated in Schedule 1 or 2 of SEPP 62 or if there is no such consent authority nominated the authority that would be the consent authority for the development but for the Policy or alternatively the council of the area in which the development is to be carried out. The Minister claims that the development is for State significant development and that accordingly he is the relevant consent authority whereas the applicant argues that as the development is not State significant development the Tweed Shire Council, as the council of the area in which the development is to be carried out and in the absence of a designation in Schedule 1 or 2, is the relevant consent authority. It is therefore fundamental to the resolution of the dispute for the Court to determine whether the development proposed is properly characterised as State significant development.

17 In order to determine whether the development is relevantly State significant development for the purposes of SEPP 62 it is necessary to have regard to the provisions that have the general consequence of replacing the scheme that previously applied to State significant development and the introduction of a scheme dealing with Major Projects in accordance with the new Part 3A of the EPA Act and State Environmental Planning Policy (Major Projects) 2005 (“SEPP Major Projects”) as well as the Major Projects – Transitional Provisions Regulation 2005; and the Environmental Planning and Assessment Amendment (Major Projects) Regulation 2006. The applicant submits that the transitional provisions which seek to maintain State significant development for the purposes identified therein are not truly transitional provisions and therefore do not have the effect whereby the Minister is the appropriate consent authority for the subject development.

18 The primary argument therefore is that the development is prohibited by the effect of cl 11 of SEPP 62 having regard to the relevant zoning of the land. The second primary argument by the applicant is that as the proposed development was not State significant development the Tweed Shire Council was the consent authority for the proposed development by reason of the Tweed LEP and cl 9(b) of SEPP 62 or alternatively cl 9(c) of SEPP 62.

19 Further arguments are developed by the applicant on the basis that the provisions that require the first respondent (if the Minister is indeed the appropriate consent authority) to categorise the development in accordance with cl 13 of SEPP 62 were not complied with. Alternatively it was not reasonably open for the first respondent to categorise the development as class 2 aquaculture development or as anything other than class 3 aquaculture development. It is alleged that cl 13(3) of SEPP 62 prevents the first respondent from granting development consent unless it has first categorised the development.

20 Moreover the first respondent failed to take into account or misconstrued the project profile analysis which required the consent authority to identify the habitat of Thenus spp as the relevant catchment referred to in item 10(b) of the site evaluation criteria for tank-based aquaculture.

21 Finally it is alleged by reason of the provisions of cl 13 and 14(1) of SEPP 62 that the development application was for designated development having regard to the following particulars:

a) The tanks are to be located on land below the 1:100 year flood level.

b) The bay lobster species Thenus spp is not indigenous to the catchment of the Tweed River.

c) The project profile analysis for this kind of aquaculture development is contained in the NSW North Coast sustainable Aquaculture Strategy – Land Based Aquaculture, August 2000.

d) The analysis provided that there was a level 3 risk for flood liability for non-indigenous species to the catchment where the site was below the 1:100 year flood.

Prohibition

22 The applicant relies on the provisions in cl 11 of SEPP 62. The aims and objectives of SEPP 62 include encouraging sustainable aquaculture in the State, to make development of that kind a permissible use and to set out the minimum site location and operational requirements. Under cl 7(2) of the SEPP a person may carry out tank-based aquaculture to which the policy applies if “in the opinion of the consent authority, it complies with the site location and operational requirements set out in Schedule 1.” Cl 11 then provides that “Aquaculture to which this Policy applies that is not permissible under this Policy with development consent is prohibited.”

23 Pursuant to cl 5 the Policy applies in relation to tank-based aquaculture in the Tweed local government area where the land is situated. The second respondent proposes to carry out aquaculture development to which the Policy applies. The development is prohibited if it is not permissible with development consent under SEPP 62. Relying on cl 7 and the alleged non-compliance with the site location and operational requirements set out in Schedule 1 the applicant contends that the proposal for tank based aquaculture may not be carried out and is therefore prohibited.

24 Part of the development will be situated outside areas zoned for rural purposes or industrial purposes and therefore, according to the applicant cannot meet the minimum performance criteria in Part 2 of Schedule 1 to SEPP 62 cl 2.

25 In a report to the Minister in December 2005 by the Department of Planning it is recognised that the proposed development meets only 11 out of 12 minimum performance criteria thereby recognising that part of the development is proposed to be carried out in areas zoned otherwise than for rural purposes or industrial purposes. It is apparent therefore that the Minister formed an opinion as required by cl 7(2) of SEPP 62 that as the majority of the subject land was within areas zoned for rural purposes or industrial purposes it complied with the site location requirements. It is the applicant’s case that the existence of the requisite opinion, lawfully formed, is a jurisdictional fact. Even if the Minister did hold the opinion, it was not formed reasonably upon the material before him and therefore could not lawfully be formed in the circumstances. It is not a matter of substantial compliance (Hunter Resources Ltd v Melville (1988) 164 CLR 234; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).

26 It is the first respondent’s defence that the effect of cl 7 of SEPP 62 is that any tank-based aquaculture is permissible to the extent that it was in the opinion of the Minister “within areas zoned for rural purposes or zoned for industrial purposes.” The submission by the applicant is that there is an inconsistency between SEPP 62 and the Tweed LEP. Under the latter instrument aquaculture development is permissible in the rural zone with consent but under SEPP 62 this “particular” development is prohibited having regard to the effect of cl 11 of the SEPP. The first respondent contends that if the proposed development was prohibited under SEPP 62 to the extent that cl 11 applies, it nevertheless fell squarely within the terms of s 76A(8) of the EPA Act and therefore could be carried out with development consent. This argument depends upon accepting that subsection 8 of s 76A applies to development notwithstanding the use of the words “a project” in subclause (a).

27 Section 76A(7) and (8) of the EPA Act provide:-

(7) State significant development
State significant development is:
(a) development:

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

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

(b) particular development, or a particular class of development:
(i) that, under an environmental planning instrument, may be carried out with development consent, and

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

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

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

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

(8)If:

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

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

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

28 Mr Robertson SC, on behalf of the applicant company, relies upon the distinction that subsection (8) applies to projects whereas subsection (7) applies to development. Accordingly he says subsection (8) can only apply to a project where there is State significant development as well as development that is not State significant development. Moreover Mr Robertson argues that if any part of the development is to be regarded as State significant development then it must fall within paragraph (b) of s 76A(7); there being no relevant declaration in a SEPP or REP under subsection (a). Furthermore there has not been any direction contemplated by subs (7)(c) or (d). In the event of any inconsistency between SEPP 62 and any other environmental planning instrument, SEPP 62 prevails pursuant to cl 6 of the SEPP. Notwithstanding that aquaculture development is permissible with consent in the rural zones under Tweed LEP, as SEPP 62 prohibits the development as a whole rather than permits it with consent the applicant says it cannot be State significant development under s 76A(7). It therefore follows that s 76A(8) does not apply because the development as a whole is prohibited rather than being a project which comprises development part of which is State significant development.

29 In response, the first respondent argues that the manifest intention of s 76A(8)(c) is to permit State significant development to be carried out with consent where part of it would otherwise be prohibited. Thus the fact that part of the proposed aquaculture development is in the rural and industrial zones on which it can be carried out with development consent, the whole of the development may be carried out with development consent notwithstanding that some part of it is on land on which it would be otherwise prohibited.

30 The second respondent adopts the Minister’s submissions in relation to the alleged non compliance with cl 11 and the operation of cl 7(2) of SEPP 62. According to the applicant the submissions made on behalf of the Minister concerning the effect of the now repealed s 76A(8) fail to recognise the problem in respect of the interrelationship between s 76A(7) and (8). It is convenient to reiterate a summary of the applicant’s argument:-

(a) s 76A(8) applies where part of State significant development is prohibited, not as here where the development as a whole is prohibited; and

(b) if s 76A(7)(b)(i) is not satisfied because the development may not be carried out with development consent, then no part of the development is State significant development. Thus, s 76A(8)(c) can have no application because, for it to apply, it requires part of State significant development to be prohibited. Further, even if the Respondents’ contention that part of the development only is prohibited is correct, that still means that the prohibited part of the development is still not State significant development under s 76A(8)(c) because no part of the development is State significant development.

Clause 8J(7)

31 This clause was inserted into the EPA Regulation by the Major Projects – Transitional Provisions Regulation 2005.

32 Mr Robertson describes this provision as a “phoenix regulation” that attempts to achieve something that could not have occurred in any event given that the development application had never been for State significant development before the 2005 Act. Moreover the power to make such a regulation was conferred by cl 1 of Schedule 6 of the EPA Act which extended only to the making of a “savings or transitional provision consequent upon the enactment” of the legislation. The Regulation had no operation on a pending application which was not for State significant development. He relies on the definitive statement by Brennan J in State of South Australia v Tanner (1989) 166 CLR 161 at 178-9:-

If the directness and substantiality of the connexion between the likely operation of the regulation and the statutory object is so exiguous that the regulation could not reasonably have been adopted as a means of fulfilling the statutory object, the regulation is invalid.

33 He elucidates the argument as follows:-

No such opinion had been formed before State significant development had been removed from the Act, at that date (1 August 2005) the particular development was not State significant development. This provision enables the Minister to revive it. It is difficult to see how it is a transitional provision. The right to have the development treated as State significant had been lost upon the repeal of those provisions. The Minister cannot be empowered, under the guise of a transitional provision, to “revive” a DA which had never been for State significant development before the 2005 Act.

34 Accordingly, he says, where cl 8J(7) seeks to apply to development applications made otherwise than in respect of State significant development before 1 August 2005 it is not a provisions of a savings or transitional nature consequential upon the 2005 Act and is therefore invalid to that extent.

Whether development application for State significant development

35 Mr Robertson contends further that on the present case the development application was not for State significant development at the relevant date for the following reasons:-

(a) SEPP 62 prohibited it, and development could not be declared SSD under s 76A(7)(a)(ii) or (b)(i) unless it could be carried out with development consent, and hence neither the SSD SEPP nor the 1999 Ministerial declaration applied to the DA;

(b) the SSD SEPP was not effective to designate SSD under s 76A(7)(a)(i) because it did not declare any development to be SSD;

(c) the Ministerial declaration was not effective to declare the DA as SSD because the Minister did not form the opinion before its revocation that the DA was for any class of aquaculture industry referred to in the declaration; and

(d) the SSD SEPP, if it operated at all under s 76A(7)(a) was only effective where the Minister formed an opinion that the DA was of a kind described in Schedule 1 to the SEPP, and the Minister did not form that opinion in relation to the proposed development under the SSD SEPP upon its commencement (25 May 2005) or at any time before the commencement of the 2005 Act (1 August 2005).

36 The first respondent submits to the contrary and that the following findings of fact are open. The submission by the first respondent is supported by the second respondent.

1. The development application was made (before the commencement of Part 3A) “on the basis” that the development was State significant development. This is said to be evident from:-

a) The description in the Development Application:

“The Proposal involves the construction of facilities for the breeding and growing of “Bay Lobster” Thenus spp., a lobster species commonly known as Moreton Bay Bugs.

It involves an investment of in excess of $40M with approximately 70 jobs and an export value in excess of $50M p.a in Stage 1 growing through to approximately 200 jobs and $150M in export value in Stage 3.

Included is the requirement to construct a sub sand seawater intake and pumping facility within Crown Reserve 1001008 at Kingscliff and seawater intake and return pipelines to and from the property within both Crown and Public reserves.”

b) The description in the Statement of Environmental Effects:

“…the proposed development, which will employ more than 20 people and is affected by the provisions of State Environmental Planning Policy No. 62, is identified as State Significant Development and will subsequently require the consent of the Minister in order to proceed.”

“The consent authority for the proposed development is identified as the Minister of the Department of Infrastructure Planning & Natural Resources. The latter is enforced by way of a declaration made by the Minister dated 3 September 1999, in which Aquaculture developments that will employ more than 20 people are deemed to be State Significant Development. The latter is also consistent with the employment generating provisions of State Environmental Planning Policy No. 34. Accordingly, the Department is identified as the consent authority for this particular application.”

c) The report on Preliminary Planning Investigations:

“On the 3 September 1999 the Minister for Urban Affairs and Planning made a declaration pursuant to section 76A(7) of the Environmental Planning and Assessment Act 1979 as amended, declaring an “aquaculture industry” to be state significant development, if in the opinion of the consent authority;

· The project has been identified as being of state or regional significance in a strategic plan adopted by the Director General; or

· The project will employ more than 20 people.

On the basis that the project will employ more than 20 people the proposal is caught by the declaration. The Minister for Infrastructure Planning and Natural Resources is therefore the consent authority pursuant to sections 4 and 76A of the Act. Any Development Application would therefore need to be lodged and processed by the Department of Infrastructure, Planning and Natural Resources.”

d) The Assessment Report December 2005 Executive Summary:

“The DA was lodged with the Minister on the basis that it was State Significant Development falling into a category of development under a Ministerial declaration.”

2. That after commencement of Part 3A the Minister formed the opinion to the effect that “the project” comprising “the development” was at the time the development application was made State significant development with the meaning of s 76A(7) as it then was.

3. That the subject development was a particular class of development.

a) that under an environmental planning instrument may be carried out with development consent (s76A(7)(b)(i));

b) in respect of which the Minister had formed the opinion “[is] of State environmental planning significance” (s 76A(7)(b)(i));

c) that had been “declared by the Minister by notice in the Gazette to be State significant development” (s 76A(7)(b)(iii))

4. The Minister was the consent authority (s 76A(9)).

5. That for the purposes of determining the level of assessment of the Development Application, the first respondent categorised the subject development pursuant to cl 13 of SEPP 62 as “Class 2 – Non-designated development (medium level risk)” in accordance with his opinion formed having regard to the relevant project profile analysis (that is, otherwise that as designated development).

6. That the first respondent as consent authority determined the development application:-

a) “on the basis that the development was State significant development”,

b) “as if the amendments made to the EPA Act by Schedule 1 to the 2005 Amending Act had not been made”,

c) taking into account the provisions of SEPP 62 and other relevant considerations under the EPA Act, including the conditions that may be imposed,

d) by granting consent subject to the conditions set out in Schedule 2 of the Development Consent.

37 The critical point that the applicant makes is that the development was at all times prohibited by the terms of SEPP 62 in that it does not meet the site performance criteria because part of the development is to be carried out on land that is not within a rural or industrial zone. Moreover unless a development is State significant development pursuant to s 76A(7) under (a), (b), (c) or (d) of that subsection or by virtue of any other provision then it cannot be part of a project contemplated by subsection (8) of s 76A. The argument continues that as neither (c) or (d) of s 76A(7) apply, then for the development to be State significant development it must be development that is declared by a SEPP or REP and may be carried out with development consent under (a) or a particular development that under an environmental planning instrument may be carried out with development consent pursuant to (b).

38 The whole development is prohibited under SEPP 62 and therefore, according to Mr Robertson, the respondents cannot rely on (a) or (b) of subsection (7). Notwithstanding that proposition put on behalf of the applicant, the respondents say it is possible to rationalise the effect of s 76A(8)(a) by regarding that part of the development that is in the rural or industrial zone as development which is State significant development and regarding the remainder of the development that is proposed to be carried out in other zones as being “all other development comprised in the project” within the meaning of s 76A(8)(a). That the whole development proposal would be prohibited under SEPP 62 is not to the point where s 76A(8) applies as the subsection recognises that some part of a project may be an essential ingredient in an overall proposal where only part of the project is development that is State significant development. The respondents regard those parts of the proposed development located outside the rural or industrial zones as being part of a project which includes development relevantly permissible in the nominated zones and therefore permissible and hence is to be recognised as State significant development for the purposes of s 76A(7) and (8). On that approach no question regarding substantial compliance with SEPP 62 arises on the basis that the majority of the land was in areas in the designated zones. However I prefer and adopt the argument of the applicant in respect of the application of s 76A(8); there being no State significant development at any time relevant to the operation of cl 8J(7).

39 There can be no argument against the fact that the development application was made on the basis that it was for State significant development. This is a clear circumstance where the application for consent can initially qualify the development as being of a particular character, even if wrong. It is nevertheless the basis of the application. By dint of cl 8J(7) the development application was one that qualified for the requirement that the Minister form an opinion that the development is State significant development. Thereafter he may determine the application on that basis because the development application was made before the commencement of Part 3A. It was not a requirement that it was actually State significant development rather that it was made on that basis. It clearly was the latter.

40 That leaves open the question of firstly whether the clauses 8J(7) can be truly regarded as a transitional provision and secondly whether any opinion formed by the Minister that it was a State significant development was reasonable in the legal sense.

41 It is my view that the regulation was a transitional provision in the sense that it had the effect referred to above, namely that it was made in respect of an application made “on the basis” that it was for State significant development and that the Minister had not formed an opinion that the development, at the time the application was made, was State significant development. The application that was protected by the transitional provisions was one that had been lodged on the basis of the legislation as it was in force prior to the amendments and therefore until the Minister formed an opinion to the contrary it would be preserved as an extant development application as if the amendments made to the Act by Schedule 1 to the Infrastructure and Other Planning Reform Act 2005 had not been made. The Regulation was drafted as a precursor to the amending Act and although gazetted subsequently its purpose was to maintain the status quo in respect of the application made while the previous legislation was in force.

42 Nevertheless the development application remained to be determined in accordance with SEPP 62 at least in part. Being State significant development does not make the whole of the development one to which SEPP 62 applies. The SEPP has its own effect and cl 7(2) applies the site location and operational requirements with which the whole project cannot comply. Even though the development may be regarded as State significant development under the terms of s 76A if the respondents argument is correct, that nevertheless does not necessarily have the consequence that the development is thereby permissible with consent unless subsection 8(c) can be construed to make that which is otherwise wholly prohibited permissible with consent.

43 However there is, in my opinion. as I have indicated above an error in the reasoning that leads to a categorisation of this development as State significant development per force of s 76A(8). The source of the identification of the proposed development as State significant development is the nomination in the declaration made pursuant to s 76A(7) (see [6]) that remained extant on 15 November 2004 when the development application was lodged. That is, the whole development was State significant development at that date pursuant to the declaration and the application for consent was made on that basis as contemplated by cl 8J(7) of the Regulation.

44 Section 76A(8) does not have any work to do where the whole of the project or development is already State significant development. In this case that part of the development within the rural zone was permissible under the terms of the Tweed LEP although overridden by the provisions of SEPP 62. Arguably therefore s 76A(7)(b) applied. However when the amendments were made to the Act by Schedule 1 to the EPA Amendment (Infrastructure and Other Planning Reform) Act the declaration had already been revoked on 10 June 2005. As a matter of construction therefore the nature of the development is to be determined as if the circumstances prevailing immediately before the 1 August 2005 still applied. At that time the development proposed had ceased to be State significant development. There is no savings or transitional provisions in respect of the revocation of the declaration.

45 Unless by some means the second respondent remains entitled to have the development application determined as if it was for State significant development the Minister is not the consent authority. Section 30 of the Interpretation Act 1987 can be of no benefit to the respondents as the declaration was not an Act or statutory rule as defined for the purposes of that Act. It is axiomatic that a development application is determined according to the law as it applies at the date of the decision. Clause 8J(7) entitles the Minister to form a positive opinion in respect of the first criteria namely that the development was at the time the application was made State significant development. Secondly he was authorised to determine that application as if the Major Projects legislation had not been made and as if Part 4 still applied to State significant development as therein defined. The only logical application of the transitional provisions in clause 8J is to have regard to the circumstances immediately prior to the repeal of the provisions the Regulations seek to preserve. At that date, the declaration had been revoked. It is artificial to seek in some way, as propounded by the first respondent, that the revocation is to be regarded as an integral element of a package of legislative and administrative changes designed to operate as from 1 August 2005. Although the revocation may have been made with the best of intentions by the Minister in seeking to make consistent changes to the planning scheme in respect of Major Projects, that objective was not achieved.

46 The revocation of the declaration must be seen as an unrelated and separate action following a decision that may have been quite independent of the change to the legislation. Alternatively, the Minister simply got it wrong. Irrespective it is not open to construe the revocation as being deferred until 1 August 2005. Clause 8J makes no attempt to resuscitate the effect of the declaration.

47 On either view of the claim that the development is State significant development my decision means that the Minister is not the consent authority. Having regard to the definitive and determinative findings in relation to the identity of the consent authority it is not necessary to make a determination in respect of the other issues raised by the applicant as they can take the matter no further. Accordingly the applicant is entitled to a declaration that the consent is invalid and an order restraining the second respondent in paragraph two of the Application Class 4. The question of costs is reserved. Although prima facie the applicant is entitled to a costs order in its favour, questions may arise as to whether either or both of the respondents should be made the subject of such an order in whole or in part. The exhibits may be returned.