Hill Top Residents Action Group Inc v Minister for Planning - [2009] NSWLEC 185

No judgment structure available for this case.

Reported Decision: 171 LGERA 247

Land and Environment Court

of New South Wales

CITATION: Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185

PARTIES:
APPLICANT:
Hill Top Residents Action Group Inc
FIRST RESPONDENT:
Minister for Planning
SECOND RESPONDENT:
NSW Sport and Recreation

FILE NUMBER(S): 40333 of 2009

CORAM: Biscoe J

KEY ISSUES: JUDICIAL REVIEW :- whether major project approval for a regional shooting complex under s75J Environmental Planning and Assessment Act 1979 was void and whether any work pursuant to the approval would be unlawful by virtue of cl 11 Part 33 Schedule 3 to State Environmental Planning Policy (Major Projects) 2005 or because one of three members of panel of experts constituted under former s 75G was not an expert or because approval lacked finality and was in breach of s 75J(5)

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 4, 26, 30, 31, 75A, 75B, 75E - 75L, 75P, 75R, 75W, 75X, 75ZA, 76, 76A, 76B, 77(3), Pt 3A, Pt 4
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill 2005
Environmental Planning and Assessment Regulation 2000, cl 8O
Law Enforcement (Controlled Operations) Act 1997, ss 6, 7
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy (Major Projects) 2005, cll 2, 6(1), 7, cl 15(3) Schedule 1, cll 1, 2(2), 3, 5 - 11 of Pt 33 Schedule 3
State Environmental Planning Policy (Major Projects) 2005 (Amendment No 33), cll 2, 3, 5
Wingecarribbee Local Environmental Plan 1989

CASES CITED: Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3, (2008) 166 FCR 54
Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261, (2005) 63 NSWLR 557
Barrick Australia Ltd v Williams [2009] NSWCA 275, (2009) 168 LGERA 43
Chambers v Maclean Shire Council [2003] NSWCA 100, (2003) 57 NSWLR 152
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, (2007) 151 LGERA 400
CIC Insurance Ltd v Bankstown Football Club Ltd (1995-1997) 187 CLR 384
Clark v Ryan (1960) 103 CLR 486
Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69, (2009) 167 LGERA 52
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, (2000) 199 CLR 135
Dates v Roads and Traffic Authority (NSW) Pty Ltd [2009] NSWLEC 82, (2009) 167 LGERA 82
Dowe v Commissioner of the New South WalesSW Crime Commission [2007] NSWCA 296
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, (2008) 236 CLR 120
I W v City of Perth (1997) 191 CLR 1
Kindimindi Investments Pty Ltd v Lane Cove Council ([2006] NSWCA 23, (2006) 143 LGERA 277
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705
Mid-Western Community Action Group Inc v Mid-Western Regional Council [2007] NSWLEC 411
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48, (2008) 82 ALJR 1505
Minister for Immigration and Citizenship v SZJGV (2009) HCA 40
Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423
Newcastle City Council v Royal Newcastle Hospital (1956-1957) 96 CLR 493
Peters v Manly Municipal Council [2007] NSWCA 343
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR 389
Re Bolton Ex parte Beane (1987) 162 CLR 514
Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57, (2000) 204 CLR 82
Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87, (2007) 153 LGERA 372
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
SAAP v Minister for Immigration [2005] HCA 24, (2005) 228 CLR 294
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55
Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6, (1999) 46 NSWLR 78
Weal v Bottom (1966-67) 40 ALJR 436
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707

DATES OF HEARING: 5, 6, 25 August 2009

DATE OF JUDGMENT:
24 November 2009

LEGAL REPRESENTATIVES: APPLICANT:
Mr T. Robertson SC with Mr J. Lazarus (barrister)
SOLICITORS:
Environmental Defender's Office

FIRST RESPONDENT:
Mr N. Williams SC with Ms A. Mitchelmore (barrister)
SOLICITORS:
Department of Planning
SECOND RESPONDENT:
Mr M. Hall (barrister)
SOLICITORS:
Crown Solicitor's Office (NSW)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

24 November 2009

40333 of 2009

Hill Top Residents Action Group Inc v Minister for Planning and Anor

JUDGMENT

1 HIS HONOUR: This is an application for judicial review of a major project approval under s 75J in Part 3A of the Environmental Planning and Assessment Act 1979 (EPA Act).

2 The second respondent, NSW Sport and Recreation, is the proponent of the proposed development the subject of major project application No MP 06_0232, for the expansion of the existing Hill Top Rifle Range into a regional shooting complex called the Southern Highlands Regional Shooting Complex (Project). The project site fronts Wattle Ridge Road near the village of Hill Top in the Southern Highlands, in the Wingecarribee local government area.

3 On 26 February 2009, the first respondent, the Minister for Planning, conditionally approved carrying out of the Project under s 75J of the EPA Act.

4 The applicant, Hill Top Residents Action Group Inc, contends that the approval is void and that carrying out work pursuant to the approval is unlawful on three grounds:

(a) by virtue of cl 11 of Part 33 Schedule 3 of the State Environmental Planning Policy (Major Projects) 2005 ( Major Projects SEPP ), which prohibited the Project (or sapped the Minister of power to approve it under Part 3A), and s 75R of the EPA Act ;

(b) by virtue of ss 75G(1)(a) and 75J(2)(a) of the EPA Act because one of the three members of the panel of experts constituted by the Minister under s 75G (since repealed) to assess the Project was not an expert;
(c) the approval lacks finality and is in breach of s 75J(5) of the EPA Act.

5 The applicant claims declarations that the approval is void, an order quashing the approval, an order that the second respondent be restrained from carrying out work pursuant to the approval or such further or other orders as the Court thinks fit.

6 I uphold the first ground of challenge, reject the other grounds and propose to grant relief.

FIRST GROUND: MAJOR PROJECTS SEPP

7 The first ground is that the Minister’s approval is void and the carrying out of the Project would be unlawful by virtue of cl 11 of Part 33 Schedule 3 of the Major Projects SEPP, which prohibited the Project (or sapped the Minister of power to approve it under Part 3A), and s 75R.

8 There are two issues:

(a) whether, on its proper construction, cl 11 prohibits the Project development on the site. The applicant says that this is so either on its construction of cl 11 or on the respondents’ competing construction;
(b) whether cl 11 applies to the approval of the Project. It is common ground that cl 11 applies to the carrying out of the Project: s 75R(2)(b). However, the second respondent (but not the first respondent) submits that it does not apply to the approval of the carrying out of the Project. If the second respondent is correct but cl 11 prohibits the carrying out of the Project, the only consequence is that the approval is valid but that the carrying out of the Project is unlawful and liable to be restrained. The second respondent’s point is therefore narrow and focused on the form of relief.

Background

9 In order to assess the applicant’s case, it is necessary to consider the statutory process by which in 2007 the Project came to be a project to which Part 3A of the EPA Act applies, in 2008 land use zoning and development controls for the Project site were introduced by an amendment to the Major Projects SEPP, and in 2009 the Minister approved the Project under Part 3A.

10 Proposals for the development of land which require consent are generally assessed and determined under Part 4 of the EPA Act by local councils. Since 1 August 2005 separate provision has been made in Part 3A (ss 75A – 75ZA) for assessment and determination by the Minister of projects declared under s 75B to be a project to which Part 3A applies by a State environmental planning policy or by order of the Minister published in the Gazette. The kind of development that may be so declared includes major infrastructure projects and development that, in the opinion of the Minister, is of State or regional planning significance: s 75B(2).

11 Section 75J empowers the Minister to approve the carrying out of a project:

“ 75J 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 a project, and
(b) the Director-General has given his or her report on the project to the Minister,
the Minister may approve or disapprove of the carrying out of the project.
(2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:

(a) the Director-General’s report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and
(b) if the proponent is a public authority—any advice provided by the Minister having portfolio responsibility for the proponent, and
(c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.

(3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit”.
(4) A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine.
(5) The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).

12 Section 75R provides for the application of State environmental planning policies as well as for the non-application of other environmental planning instruments:

75R Application of other provisions of Act

Note: See sections 75J(3) and 75O(3) in relation to the application of such instruments when an application for approval of a project or a concept plan is being considered.

13 The aims of the Major Projects SEPP are stated in cl 2 and include:

14 “State significant sites” (a concept that does not appear in the EPA Act), including development thereon that is a project to which Part 3A of the EPA Act applies, are described in Schedule 3 to the Major Projects SEPP, to which cl 7 of the Major Projects SEPP refers as follows:

7 State significant sites

15 Clause 6(1) of the Major Projects SEPP provides that development that is, in the opinion of the Minister, development of a kind that is described in Schedule 1 or that is described in Schedule 3 as a project to which Part 3A of the Act applies, is declared to be a project to which Part 3A of the Act applies. Development of a kind that is described in Schedule 1 includes major sporting facilities described in cl 15 of Schedule 1. The relevant major sporting facility is described in cl 15(3):

“Development for the purpose of a regional shooting complex where two or more shooting clubs or ranges within a defined region are consolidated into a single site.”

16 Minutes dated 26 September 2006, 20 April 2007 and 20 August 2007, record that the Minister formed the opinion on each of those dates that the Project was a development of the kind described in cl 15(3), and was thus declared to be a project to which Part 3A of the EPA Act applies for the purpose of s 75B.

17 The first of those opinions was revoked in the minute of the second. The second opinion was revoked in the minute of the third. The reason for the revocations was that the Project proposal had been modified after the first and again after the second of those dates. The description of the Project in the final minute was as follows:

Southern Highlands Regional Shooting Complex

Preliminary Assessment

18 Also on 26 September 2006, the Minister agreed to commence the process of amending the Major Projects SEPP to include the Project site in Schedule 3 to the Major Projects SEPP.

19 The declaration of the Project as a project to which Part 3A applied led to the carrying out of the following environmental assessment process prescribed by Part 3A: (a) in November 2006 environmental assessment requirements were issued by the Director-General of the Department of Planning under s 75P; (b) in August 2007 modified environmental assessment requirements were issued; (c) in February 2008 an environmental assessment was submitted on behalf of the proponent pursuant to s 75H; (d) in May 2008 the Minister purported to constitute an independent panel of experts to assess the Project under s 75G and the panel reported in August 2008; and (e) on 3 October 2008 the Director-General gave an environmental assessment report to the Minister pursuant to s 75I, recommending that the Minister approve the carrying out of the Project subject to conditions and sign the attached Determination. The report included, as required by s 75I(2)(c), a copy of the report of the independent panel of experts. The report also noted that in September 2006 the Minister had agreed to commence the process of amending the Major Projects SEPP to include the Project site as a State significant site in Schedule 3.

20 On 10 October 2008 the Minister’s recommended to the Governor that the Governor make Major Projects SEPP Amendment No 33 to list the Southern Highlands Regional Shooting Complex as a State significant site in Schedule 3 to the Major Projects SEPP. The purposes of the proposed amendment and how it achieved the purposes were identified as follows:

The proposed SEPP achieves these purposes by establishing land use zones, special provisions and maps to guide further development within the Southern Highlands Regional Shooting Complex site.

SP1 – Special Uses
E2 – Environmental Protection

21 On 17 October 2008 the Project site came to be described as a State significant site in Schedule 3 to the Major Projects SEPP upon gazettal of State Environmental Planning Policy (Major Projects) 2005 (Amendment No 33). The aims of Amendment No 33 are stated in cl 2:

State Environmental Planning Policy (Major Projects) 2005

22 Amendment No 33 amended Schedule 3 to the Major Projects SEPP by inserting Part 33 into the Schedule. Part 33 is titled, and the land referred to therein is described as, the “Southern Highlands Regional Shooting Complex Site”. Amendment No 33 (in cl 3) and Part 33 (in cl 1) are expressed to apply to the land shown on the Southern Highlands Regional Complex - Land Application Map held in the head office of the Department of Planning. That land comprises the whole of the Project site. The Land Application Map divides the Project site into two zones. The smaller zone is Zone SP1 Special Activities on which appear, on the map, the words “Shooting Range”. The larger part, which surrounds the smaller zone (except for the portion fronting Wattle Ridge Road), is Zone E2 Environmental Conservation.

23 The Project development was prohibited on the Project site under the Wingecarribee Local Environmental Plan 1989 (LEP) because it zoned the Project site 1(a) (Rural “A” Zone) and prohibited recreation facilities in that zone. By snakes and ladders statutory provisions, the LEP prohibition came to be inapplicable to the Project site. Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of a project approved by the Minister under Part 3A: s 75R(3). However, the regulations may preclude approval under Part 3A for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit: s 75J(3). Clause 8O(1)(b) of the Environment Planning and Assessment Regulation 2000 precludes approval for the carrying out of a project that is prohibited by such an instrument. Clause 8O provides:

“ 8O Other projects prohibited by environmental planning instruments for which project approval may not be given

24 Although by virtue of s 75J(3) and cl 8O(1)(b) the prohibition in the LEP was revived, it was then removed by cl 5 of Part 33 Schedule 3 of the Major Projects SEPP which provides that: “The only environmental planning instruments that apply, according to their terms, to land within the Southern Highlands Regional Shooting Complex site are this Policy and all other State environmental planning policies except State Environmental Planning Policy No 1—Development Standards.” Therefore, cl 8O of the Regulation did not operate to preclude approval for the carrying out of the Project.

25 Division 2 (cll 6 to 17) of Part 33 Schedule 3 of the Major Projects SEPP is titled “Provisions Relating to Development within Southern Highlands Regional Shooting Complex site”. The following provisions of Division 2 are relevant:

“ 6 Application of Division
(1) This Division applies to development on land in the Southern Highlands Regional Shooting Complex site, except as provided by subclause (2).
(2) Clauses 8, 9, 10, 15, 16 and 17 do not apply to development within the Southern Highlands Regional Shooting Complex site to the extent that it is a project to which Part 3A of the Act applies.

7 Land use zones
For the purposes of this Policy, land in the Southern Highlands Regional Shooting Complex site is in a zone as follows if the land is shown on the Land Zoning Map as being within that zone:
(a) Zone SP1 Special Activities,
(b) Zone E2 Environmental Conservation.

8 Objectives of land use zones to be taken into account
The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

9 Zone SP1 Special Activities

environmental protection works.

the purpose shown on the Land Zoning Map, including any development that is ordinarily incidental or ancillary to development for that purpose; drainage.

(4) Except as otherwise provided by this Division, development is prohibited on land within Zone SP1 Special Activities unless it is permitted by subclause (2) or (3).

10 Zone E2 Environmental Conservation

environmental protection works.

drainage; environmental facilities; roads.

business premises; hotel or motel accommodation; industries; multi dwelling housing; recreation facilities (major); residential flat buildings; retail premises; seniors housing; service stations; warehouse or distribution centres; any other development not specified in subclause (2) or (3).

11 Prohibited development

26 Clause 11 is the basis of the applicant’s first ground.

27 The prohibition in cl 11 is authorised by s 31 of the EPA Act, which provides that an environmental planning instrument may provide that development specified therein is prohibited, and by cl 7(2) of the Major Projects SEPP.

28 Clauses 7 and 9 of Part 33 refer to Zone SP1 Special Activities. In that zone development for a purpose shown on the Land Zoning Map is permitted with development consent: cl 9(3). The purpose of Zone SP1 shown on that map is “Shooting Range”.

29 Ultimately, on 26 February 2009, the Minister approved the Project under s 75J by signing a Determination which included the following:

“I, the Minister for Planning, having considered Section 75J(2) of Part 3A of the Environmental Planning and Assessment Act 1979, determine the major project referred to in the attached Director-General’s Environmental Assessment Report, by giving of approval to the major project referred to in the attached Schedule 1 subject to the conditions of approval in Schedule 2 and the Statement of Commitments in Schedule 3.

30 Schedule 3 was not in fact attached to the Determination, which gives rise to the applicant’s third ground. No point is made of the fact that the terms of the Determination did not precisely mirror s 75J(1): that is, the Determination was expressed to be “by giving of approval to” the “project” whereas s 75J(1) referred to approval “of the carrying out of the project”.

Construction of cl 11

31 The applicant submits that:

(a) by reason of cl 6(2), as the Project is a project to which Part 3A of the EPA Act applies, cll 9 and 10 of Part 33 Schedule 3 to the Major Projects SEPP, which define what is permissible on the site with or without consent within the two relevant zones, do not apply. Therefore the Project development is not permitted with or without consent in those zones;
(b) it follows that by dint of cl 11 the Project is prohibited development and the approval is therefore invalid. In oral submissions the applicant at one point appeared to argue somewhat differently that under cl 11 the Minister was sapped of power to approve the Project under Part 3A of the EPA Act - although it could be approved under Part 4.

32 The respondents submit that as a matter of construction, the cl 11 prohibition exception for “development that is permitted with or without consent on land within a zone” is a reference to that which is permitted with or without consent under cll 9 and 10. Consequently, they submit, the Project development is not prohibited under cl 11.

33 In my opinion, upon consideration of the context and text of Amendment No 33, the preferable construction is that for which the respondents contend.

34 As regards context, in CIC Insurance Ltd v Bankstown Football Club Ltd (1995-1997) 187 CLR 384 at 408 the High Court held (citations omitted):

“Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular… if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.”

35 Part 33 of Schedule 3 to the Major Projects SEPP, introduced by Amendment No 33, is a planning instrument controlling the use of the Project site. One of the expressed aims of that amendment is to establish appropriate zoning and other development controls for the Project: see [21] above. It divides the site into two zones, identifies the objectives of the zones, provides for development that is permissible or prohibited within the zones, and provides for development standards. Before Amendment No 33 was gazetted, the Project had become a project to which Part 3A of the EPA Act applied: see [16] above. Although Part 33 Schedule 3 is found in a major project SEPP that invokes Part 3A of the EPA Act, it contains provisions that are applicable to a development application under Part 4 of the EPA Act to the extent that the development is not a project to which Part 3A applies: cl 6(2) of Part 33. That is because it recognises that not all future development that might be proposed for the site will be a project to which Part 3A applies. Thus, cl 3 of Part 33 provides:

“The consent authority for development on land in the Southern Highlands Regional Shooting Complex site, other than development that is a project to which Part 3A of the Act applies, is the Council.”

36 By virtue of cl 6(2) of Part 33, cll 8, 9 and 10 are inapplicable to a Part 3A project. Consequently, the Minister is not obliged to have regard to the zone development objectives in cll 9 and 10 when giving a Part 3A development approval. In contrast, the council, as the Part 4 consent authority, is bound by cl 8 to have regard to those objectives when determining a Part 4 application.

37 In my opinion, contrary to the applicant’s submission, cl 6(2) does not mean that the description in cll 9 and 10 of development that is permissible with or without consent is of no relevance for the purposes of a Part 3A project. Clause 11 applies to Part 3A projects. Clause 11 excepts from its prohibition “development that is permitted with or without consent in land within a zone”. The content of the exception to the prohibition in cl 11 is not spelt out in cl 11 itself. Clauses 9 and 10 describe development that is permitted with or without consent in the zones. They are the proximate and natural reference points for the cl 11 exception. Under cl 9(3), the purpose of a shooting range in Zone SP1 shown on the Land Zoning Map is permitted. Reading cl 11 with cl 9(3), development for the purpose of a shooting range is permitted with consent under the exception in cl 11 in that zone. It is beside the point that, for different purposes, cl 6(2) provides that cll 9 and 10 do not apply to a Part 3A development.

38 If, as the applicant contends, cl 11 is not referable to cll 9 and 10, it must be referable to unidentified provisions of some other unidentified planning instrument. No such other planning instrument was identified by the applicant, the respondents submitted that there is no such other planning instrument and, so far as I am aware, there is none. This reinforces the conclusion that the cl 11 exception is referable to cll 9 and 10, for otherwise it has no content.

39 Amendment No 33 marks out the whole of the Project site for the purposes of the Southern Highlands Regional Shooting Complex. One of its purposes is to facilitate consideration of the project under Part 3A. That purpose is manifest from its text, the place of Part 33 in the Major Projects SEPP, and the earlier steps taken to bring the project under Part 3A of the EPA Act: see [16] to [21] above. It envisages approval being granted under Part 3A for a shooting range in Zone SP1 and, as part of the shooting complex site, an environmental conservation area in Zone E2. If it is appropriate to take it into account, the purpose is also indicated by the Minister’s recommendation to the Governor referred to at [20] above. It is unnecessary to express a concluded view on the applicant’s submission that that minute is inappropriate extrinsic material for consideration because it appears to have been of a private nature.

40 Yet on the applicant’s construction of cl 11, the Project cannot proceed under Part 3A. In effect, the applicant says that the legislature has missed the target. Where the legislative purpose can be identified, including in subordinate legislation, the function of the court “is to see that it is hit: not merely to record that it has been missed”: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424D per McHugh JA quoting Lord Diplock. In my view, the applicant’s construction is so much at odds with the context and text of Amendment No 33 that it could not have been intended by the legislature: cf Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297 at 321.

41 For these reasons, I do not accept the applicant’s construction of cl 11 and accept the respondents’ construction.

Effect of cl 11

42 It is then necessary to consider the applicant’s alternative submission that, even on the respondents’ construction of cl 11, the Project is prohibited because (a) cl 10 only permits development for the purposes of environmental protection works, drainage, environmental facilities and roads within Zone E2; (b) the Project includes a “range danger area” the majority of which is within Zone E2; (c) the range danger area is to be used for purposes that are not permitted by cl 10, namely, depositing bullets, excluding the public and carrying out fencing and signage work; and (d) as the range danger area is an essential and inseverable part of the Project serving an important safety purpose, if it is not a permissible use in the E2 zone, it follows that the Project as a whole could not be approved and, accordingly, it is prohibited.

43 The respondents submit that (a) the range danger area does not constitute a use of the Zone E2 land; (b) even if it constitutes a use, the range danger area is permissible in Zone E2 because (i) the use of capturing bullets is subordinate or incidental to the dominant purpose of the E2 land, which as its title suggests is environmental conservation, and is not a separate and independent use; and (ii) the use of fencing and signage to close off walking tracks is ancillary to the dominant use of walking tracks, which are included in the definition of “environmental facility” permitted under cl 10(3), in the Standard Instrument – Principal Local Environmental Plan (in the schedule to the Standard Instrument (Local Environmental Plans) Order 2006).

44 The Minister’s approval in February 2009 referred to the proponent’s Environmental Assessment and the Director General’s Environmental Assessment Report. The “range danger area” is defined in the Environmental Assessment as:

“The fan shaped area beyond the targets around the range that falls under the safety template and into which bullet projectiles may fall.”

45 The “safety template” is defined in the Environmental Assessment as:

“An area required for personal safety behind the targets, which is calculated based on the types and calibres of firearms in use around associated ricochet trajectories.”

46 The Environmental Assessment paragraph 7.4.6 contains the following further description of the range danger area:

Firearms Registry Range Users Guide

47 Figure 7.6 shows a fan-shaped area beyond the targets, extending well into Zone E2.

48 The “range danger area” is also described in the Director-General’s Environmental Assessment Report:

NSW Firearms Registry Range Users Guide

49 That Report also explains the proposal for fencing and signage as follows:

“The proponent has proposed fencing along the shooting complex site fronting Wattle Ridge Road, and 200m into the site. Warning signage is proposed around the perimeter of the site to warn anyone who may wander into the site about the potential dangers. A condition is recommended that signage also be placed near established bushwalking tracks, which is considered to provide sufficient warning to bushwalkers, given that the site is covered in thick bushland, the change [sic] of wandering off trails and into the range danger areas or shooting ranges is considered to be very low. The proponent has also stated in the PPR that bushwalking tracks within the range danger templates will be fenced off…

NSW Police Range Users Guide

50 The Minister’s approval of 26 February 2009 included the following conditions:

D5 Fencing and Warning Signs

E2 Range Danger Areas

51 Condition D5 appears to have been responsive to a submission on behalf of the proponent prior to the Minister’s approval that while bushwalking tracks were generally outside the range danger templates, bushwalking tracks that went inside the area of the templates would be fenced off, with signage provided around the entire boundary of the site. Addressing those submissions in his report, the Director-General recommended a further condition that signage be placed near established bushwalking tracks and supported the fencing off of bushwalking tracks within the range danger templates.

52 In planning law a use must be for a purpose, the purpose being the end which the land is seen to serve: Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400 at [27] (Preston CJ). Characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 (CA) at 310. It must also be done in a common sense and practical way: Chamwell at [45].

53 When there is a land use ancillary to a dominant use, the ancillary use is to be classified according to the purpose of the dominant use: Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 (CA) at 161; cited with approval in Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211 at 216-217. In Foodbarn, Glass JA (Samuels and Hutley JJA agreeing) held that where a part of a site is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. His Honour considered that the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. The question of whether use for a particular purpose is subservient or incidental to another purpose, or whether it constitutes an independent use, is one of fact and degree: Lizzio at 216-217; Peters v Manly Municipal Council [2007] NSWCA 343 at [21].

54 The only purposes for which development is permitted with or without consent in Zone E2 are environmental protection works, drainage, environmental facilities and roads: cl 10(2) and (3) of Part 33. Those expressions have the meanings given by the Standard Instrument – Principal Local Environmental Plan in the Schedule to the Standard Instrument (Local Environmental Plans) Order 2006: cl 2(2) of Part 33. The Standard Instrument defines “environmental facility” to include walking tracks, which the respondents employ to found their submission concerning fencing and signage: see [43(b)(ii)] above. The applicant submits that the activities of depositing bullets, excluding the public and carrying out fencing and signage works do not fall within those definitions; and therefore those activities are prohibited by cl 10(4) to the extent that they constitute “development” as defined.

55 “Development” is defined in the EPA Act to include “the use of land” and “the carrying out of a work”: s 4.

56 The applicant submits that depositing of bullets and excluding the public from the range danger area constitutes a use of that land and that the fencing and signage work in that area constitutes the “carrying out of a work”; and therefore there is to be an impermissible development in Zone E2. In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48, 82 ALJR 1505 at [69] the plurality of the High Court said that “recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land”. The Court added that “while these propositions may sufficiently identify the most common cases where it can be said that there is use or occupation of the land, they are not propositions that chart the metes and bounds of those ideas.”

57 The applicant seeks to fortify its case by reference to the passive use decision in Newcastle City Council v Royal Newcastle Hospital (1956-1957) 96 CLR 493. The statutory provision at issue in that case created an exemption from rating under the Local Government Act in respect of land that belonged to a public hospital and was “used or occupied by the hospital for the purposes thereof”. The High Court held by a 3-2 majority that land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings was “used or occupied by the hospital for the purposes thereof” and accordingly fell within the rating exemption. Kitto J, in dissent, said at 510:

“It is surely undeniable that a bare holding of land is neither a use nor an occupation of it, and it makes no difference that the reasons which lead the owner to retain the land unused and unoccupied are logically connected with the pursuit of purposes which he is serving by means of a use or occupation of other land.”

58 As Taylor J, in the majority, emphasised, the meaning of the word “used” in a particular case will depend to a great extent upon the context in which it is used (at 515). The statutory context in the present case is distinguishable from that in the Newcastle case. Here the reference to “use” occurs in the definition of “development” in circumstances where penalties can apply for carrying out development without consent, or for carrying out impermissible development. In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council(No 2) (1997) 42 NSWLR 641 at 648 Sheller JA (Priestley and Handley JJA agreeing) said:

Newcastle City Council v Royal Newcastle Hospital

Handley JA added at 644:

“In my opinion the prohibition on the carrying out of development in s 76(2) by the use of land can only be contravened by an active use and has no application where the use is entirely passive.”

59 In my opinion, the catching of bullets in the range danger area in Zone E2 is an active use, not a passive use. That use, in my view, is ancillary to the dominant purpose of a shooting range. The raison d’etre for the existence of the range danger area is the shooting range. A shooting range is not a permissible use on the E2 land. Therefore, under cl 11 the catching of bullets on the range danger area is prohibited on the E2 land. The exclusion of the public and the proposed fencing and signage are for the same purpose and are also prohibited. Even if, as the applicant suggests, the proposed use were viewed as for the purpose of catching bullets, it would still be an active and impermissible use.

60 In my opinion, the range danger area is so essential to the shooting range that the Project as a whole could not be approved without it and, accordingly, is prohibited.

61 For these reasons, I uphold the first ground, subject to consideration of the second respondent’s submission as to the extent of the application of cl 11, to which I now turn.

The application of cl 11

62 Clause 11 clearly applies to the “carrying out” of the Project under s 75J (quoted with s 75R at [11] – [12] above): s 75R(2)(b). However, the second respondent (but not the first respondent) submits that cl 11 does not apply to the approval of the carrying out of the Project. If the second respondent is correct but cl 11 prohibits the carrying out of the Project (as I have found), the only consequence is that the approval is valid but that the carrying out of the Project is unlawful and liable to be restrained. The second respondent’s point is therefore narrow and focused on the form of relief. I have difficulty in seeing that the point continued to be of much practical consequence once the applicant amended its claim (as it did) to contend that, whether or not the approval was void, the carrying out of the Project would be unlawful such that the second respondent is liable to be restrained from carrying it out.

63 The applicant submits that s 75R applies the Major Projects SEPP to the approval. The second respondent argues to the contrary that s 75R distinguishes between three stages in the life of a project: the declaration of the project as a project to which Part 3A applies (the first stage), the approval of a project (the second stage) and the carrying out of a project (the third stage). Section 75R(2) says that State environmental planning policies apply to the first and third stages: see [12] above. Consequently, according to the argument, the Major Projects SEPP does not apply to the second (approval) stage.

64 I do not accept the second respondent’s argument.

65 In my opinion, the legislature did not intend to empower the Minister to “approve” unlawful conduct. That is, to approve the “carrying out” of a project that cannot lawfully be carried out because it is prohibited by a State environmental planning policy. In the context of Part 4, a consent authority has no power to grant development consent to development that is prohibited and any such consent is invalid: Chambers v Maclean Shire Council [2003] NSWCA 100, 57 NSWLR 152 at [117] per Ipp JA (Sheller and Giles JJA agreeing); Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69, 167 LGERA 52 at [14] per Preston CJ. The same principle applies, in my view, in Part 3A. There is nothing in Part 4 or in Part 3A that expressly says this. In my view, it is implicit in the scheme of the EPA Act itself, under which s 31 authorises environmental planning instruments to provide that development specified therein in prohibited. The power of the Minister to approve a project under s 75J(1) should be construed as impliedly subject to that limitation. It is unnecessary for s 75R or any other provision of Part 3A to spell it out expressly.

66 The preferable construction of s 75R, in my view, is that it does provide that State environmental planning policies apply to a Ministerial approval. Section 75R(3) provides in effect that State environmental planning polices (but not other environmental planning instruments) apply “to or in respect of an approved Project”. The words “in respect of” are of wide import. The composite phrase “to or in respect of an approved project” in s 75R(3) takes its meaning, I think, from the meaning attributed to the same phrase in s 75R(1), where it includes “any approval” under Part 3A for the project (a meaning which should prevail over the definition of the shorter phrase “approved project” in s 75A).

67 The second respondent’s construction leads to the position that the carrying out of the Project would be prohibited under s 75R(2)(b) but the Minister would be authorised to grant approval unconstrained by the prohibition. All that would mean is that the Court could grant injunctive relief against the second respondent carrying out the Project but could not declare the approval void. The notion of a valid but inoperative approval is absurd, to my mind, suggesting that it is unlikely to have been what the legislature intended. Indeed, the whole statutory approval process in such a situation seems absurd on the second respondent’s construction. Surely the legislature did not intend a process whereby a proponent applies for the Minister’s approval and submits an environmental assessment “to carry out” a project (ss 75E, 75H), the Director-General gives a report to the Minister for the purposes of the Minister’s consideration of the application for approval “to carry out” the project (s 75I), and the Minister approves the “carrying out” of the Project (s 75J) when, at every step of the process, the project cannot lawfully be carried out because it is prohibited. Where the language of a statute, in its ordinary and grammatical construction, leads to absurdity that can hardly have been intended, a construction may be put upon it which modifies the meaning of the words or even the structure of a sentence: Minister for Immigration and Citizenship v SZJGV (2009) HCA 40 at [9].

68 If, however, I am in error and the second respondent is correct in its submission that the Major Projects SEPP does not apply to a Part 3A approval, then it is necessary to consider the applicant’s submission that the prohibition in the LEP is thereby revived: see [23] – [24] above. The second respondent argues to the contrary (a) that there is a false assumption (in terms of s 75J(3)) that, but for the application of s 75R, the LEP would prohibit the Project; (b) that assumption is false because the land has been rezoned by Part 33 and is no longer in any zone identified in the LEP and therefore no provision of the LEP applies to it, or would but for s 75R apply to it, to prohibit the development.

69 I am inclined not to accept the second respondent’s argument. It relies on the function of the Major Project SEPP as a “zoning instrument” (as the second respondent describes it). A zoning instrument is understood to be an environmental planning instrument that (among other things) specifies in relation to specified lands, aggregated for convenience in areas usually called “zones”, the kinds of development thereon that do not need consent, that do need consent, and that are prohibited: ss 26(1)(b) and (3A), 30-31, 76, 76A 76B, EPA Act; Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87, (2007) 153 LGERA 372 at [44] – [50] (Preston CJ). That is what cll 7 and 11 of Part 33 Schedule 3 of the Major Projects SEPP do. Those clauses apply to the Project development: cl 6. In effect, as I understand it, the second respondent seeks to rely on cl 7 while ignoring cl 11. I do not think that the zoning function is divisible in this way. The second respondent’s argument therefore brings into play cl 11, contrary to its argument that cl 11 is inapplicable.

Conclusion

70 For these reasons I uphold the first ground.

SECOND GROUND: PANEL OF EXPERTS

71 The applicant’s second ground is that the Minister’s approval is void and the carrying out of the project would be unlawful by virtue of ss 75G(1)(a) and 75J(2)(a) of the EPA Act because one of the three members of the panel of experts constituted under s 75G, Mr Ian Armstrong, was not an expert.

72 Section 75G (now repealed) provided:

“ 75G Independent hearing and assessment panels

(2) The members of a panel of experts are not to be officers of the Department or of other public authorities having regulatory functions in connection with the project.
(3) The members of a panel of officers are to be nominated by the respective chief executive officers of the public authorities that the Minister nominates to constitute the panel.
(4) For the purposes of an assessment, a panel may receive or hear submissions from interested persons and submit a report to the Director-General within the time required by the Minister.

73 The report of a panel of experts constituted under s 75G had two important consequences under the statutory scheme.

74 First, if there was a report by a panel of experts constituted under s 75G, the Minister’s power to approve or disapprove of the carrying out of the Project was conditional upon consideration of the report. Sections 75I and 75J relevantly provided:

75I

Director-General’s environmental assessment report

(c) a copy of any report of a panel constituted under s 75G in respect of the project…

75J

Giving of approval by Minister to carry out project

the Minister may approve or disapprove of the carrying out of the project.

(a) the Director General’s report on the project and the reports…contained in the report.”

75 Secondly, a report by a panel of experts under s 75G had the effect of excluding an otherwise available merits appeal to this Court by a proponent as well as by an objector who was dissatisfied with the Minister’s determination with respect to the proponent’s application. Sections 75K and 75L provided:

75K

Appeals by proponent

…

(b) the project has not been the subject… of a report of a panel of experts under s75G…

…

(1) A proponent who is dissatisfied with the determination of the Minister with respect to an application by the proponent under this Division may appeal to the Court within 3 months after [specified dates].

75L Appeals by an objector

(c) the project has not been the subject…of a report of a panel of experts under s75G…

Background

76 On 2 May 2008, purportedly pursuant to s 75G, the Minister appointed a “panel of experts” to:

77 The panel members appointed were Ian Armstrong (chair), Narjah Ishac and Vince Berkhout.

78 In the briefing note to the Minister dated 30 April 2008 recommending the appointment of the panel, Mr Armstrong’s area of expertise was described as “Panels/Rural Affairs/MLA”. Mr Ishac’s area of expertise was described as “Noise”. Mr Berkhout’s area of expertise was described as “Planning”.

79 Mr Armstrong’s curriculum vitae is in evidence and indicates that he has had long political experience as a member of Parliament, leader of a political party, Minister and Shadow Minister. He has also had extensive experience in rural activities.

80 The panel held a public meeting on 30 May 2008.

81 On 1 August 2008, the panel provided a report to the Director-General which included a number of recommendations. In his report to the Minister under s 75I, the Director-General considered the panel’s report and largely accepted its recommendations, although he recommended further conditions. As required by s 75I(2)(c), the Director-General’s report to the Minister included (as an annexure) a copy of the panel’s report. The Minister’s power to approve the Project depended upon her receipt and consideration of the Director-General’s report, including the panel’s report: ss 75J(1)(b), 75J(2)(a). It is not contentious that, as a matter of fact, the Minister took the panel report into consideration.

Submissions

82 In summary, the applicant submits that (a) a panel of “experts” in s 75G means technical experts whose expertise is relevant to a matter the panel is charged with assessing; (b) the panel was not a panel of experts within the meaning of s 75G because Mr Armstrong was not a technical expert nor an expert in anything, let alone anything relevant to a matter the panel was charged with assessing; (c) whether the panel was a panel of experts within the meaning of s 75G is a jurisdictional fact which the Court can decide; (d) alternatively, it was not reasonably open to the Minister to appoint Mr Armstrong to a panel of experts; and (e) given the centrality of the report of the panel of experts on the statutory scheme, the Minister’s approval is void.

83 In summary, the respondents submit that (a) whether the panel appointed by the Minister was a panel of experts is not a jurisdictional fact; (b) it was open to the Minister to appoint Mr Armstrong to the panel of experts; (c) even if Mr Armstrong was not an expert in the relevant sense, the panel was nevertheless a panel of experts because of the expertise of its other members; (d) even if the above propositions are rejected, it was not the legislative intention to invalidate the Minister’s approval; (e) in any case, the Court should exercise its discretion to refuse relief because of the applicant’s delay.

84 Mr Armstrong was not a technical expert. The respondents do not submit that Mr Armstrong was a technical expert. Rather, they submit that an expert within the meaning of 75G is not limited to a technical expert, and that Mr Armstrong had expertise relevant to the conduct of the panel in the execution of its terms of reference by reason of his experience in conducting public consultation, identifying issues of significance to the public in the course of consultation and facilitating the preparation of reports for public release and ministerial consideration. Assuming that “experts” within the meaning of s 75G do not have to be technical experts, the applicant replies that (a) Mr Armstrong’s expertise in those matters is not established and (b) even if they were established, such experience did not qualify him as an expert in any of the issues the panel was asked to consider and assess.

Section 75G “panel of experts”

85 There was no statutory definition of “experts” or “panel of experts” in s 75G(1). Section 75G said nothing about the qualifications that a person must have in order to be appointed to a panel of experts, although s 75G(2) contained a disqualifying provision aimed at independence (members of a panel must not be officers of the Department or of other public authorities having regulatory functions in connection with the project).

86 The only other indicator of the meaning of “experts” in s 75G was that they were to be members of a panel, the role of which was to assess any aspect of a project referred to the panel by the Minister, receive or hear submissions from interested persons and submit a report to the Director-General. The panel of experts appointed pursuant to s 75G had the role of an independent expert advisory body.

87 A definition of “expert” in the Macquarie Dictionary (3rd ed) is: “a person who has special skill or knowledge in some particular field”. In the context of expert witnesses, it means a person who, in an aspect of scientific or specialised knowledge, has become an expert by reason of training, study or experience: Weal v Bottom (1966) 40 ALJR 436 at 438; Clark v Ryan (1960) 103 CLR 486 at 491; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, 52 NSWLR 705 at [85].

88 In the absence of any statutory definition of “experts” or “panel of experts” in s 75G(1), it is appropriate to have regard to the second reading speech to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill 2005, by which Part 3A was introduced to the NSW Parliament. In the second reading speech, the Minister said of the proposal for panels of experts in relation to the assessment of Part 3A projects:

“There will be independent hearings and assessment panels. To underpin these reforms, the bill will include another important initiative to strengthen the integrated assessment process. The bill will make legislative provision for independent hearings and assessment panels to provide additional expertise to resolve technical issues in a timely manner and strengthen the scientific basis for decision making . Panels will be appointed by the Minister, who will specify the make-up of the panel and the scope of the matters it is to investigate. The Minister may direct the panel to be involved in any phase of the assessment process.
A panel may be composed of independent technical experts , which is an expert panel, or a panel of government agency officers. The panel may hold hearings to assist in clarifying issues with stakeholders and to ensure that community views are appropriately considered. The panel is advisory and reports to the Minister with its findings, which must be taken into consideration by the director-general when preparing the assessment report and recommendations for the Minister.”
(emphasis added)

89 That speech unambiguously asserted that experts means technical experts to resolve technical issues whose role was to strengthen the scientific basis for decision-making.

90 The respondents submit that the suggestion that only technical experts may be appointed to a panel of experts finds no support in the statute, and it is therefore impermissible to read in such a limitation from the second reading speech. They refer to the joint judgment in Re Bolton Ex parte Beane (1987) 162 CLR 514 at 517-518:

Acts Interpretation Act

91 I do not accept the respondents’ submission. The word “experts” is capable of meaning technical experts and is at least ambiguous in s 75G. This is not a case where the Minister’s stated intention is restrictive of the liberty of the individual or any other fundamental right. The second reading speech puts it beyond doubt that parliament intended that only technical experts may be appointed, to resolve scientific issues. On no reasonable view was Mr Armstrong such a technical expert. It is no answer that the other experts on the panel were technical experts. The statutory description is a “panel of experts”. It is the panel in which the statute reposes the power of hearing, assessment and report. This is not a case where the legislation provided that the chair of a panel of technical experts need not be a technical expert. Mr Armstrong was not a technical expert and was appointed to participate fully in the panel’s assessment and report. As the legislature intended a panel constituted under s 75G to be a panel of technical experts, in my opinion this was not a panel of experts constituted under s 75G. Nor, if reasonableness in s 75G decision-making is relevant, which I do not accept, was it reasonably open to the Minister in the Wednesbury sense to appoint Mr Armstrong to the panel: see [115] below.

Jurisdictional fact and invalidity

92 The applicant submits that whether the panel was a panel of experts within the meaning of s 75G is a jurisdictional fact, and that it was not a panel of experts within the meaning of s 75G because Mr Armstrong was not an expert within the meaning of that section.

93 The expression “jurisdictional fact” is used to identify a criterion, the satisfaction of which enlivens the exercise of a statutory power. If the criterion is not satisfied, then the decision purportedly made in the exercise of the power will have been made without the necessary statutory authority required of the decision maker: Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, 236 CLR 120 at [43]. If a fact is a jurisdictional fact, the existence or non-existence of that fact may be determined by the Court on the evidence before it: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 at [36], [40]. Questions of jurisdictional fact turn on the construction of the relevant statute: Timbarra at [37].

94 The concept of jurisdictional fact was addressed in detail in Timbarra. The Court of Appeal considered s 77(3) of the EPA Act, which provided that a development application must, if it is in respect of land which is part of a critical habitat, be accompanied by a species impact statement. The language of the statute did not suggest that any subjective decision should be made, for example by referring to an opinion, belief of conclusion of the decision-maker. The Court of Appeal decided that the question whether a species impact statement was required was a jurisdictional fact which the Land and Environment Court must determine objectively for itself. Spigelman CJ (Mason P and Meagher JA agreeing) held (most citations omitted):

“[36] If the fact in issue in the present case is a jurisdictional fact, then evidence of the existence or non-existence of that fact was admissible in the Land and Environment Court…

[37] The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute. The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517.

[38] ‘Objectivity’ and ‘essentiality’ are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of ‘essentiality’ will often suggest ’objectivity’.

[39] Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply…

[40] Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.

[41] Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then… a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.

95 In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, 199 CLR 135 at [28] and [34] the High Court held (citations omitted):

“[28] The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) forbids the relevant authority granting a provisional development plan consent to a ‘non-complying’ development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a ‘non-complying’ development, which turned upon the application of the criterion of "special industry", was a condition upon the existence of which there operated the obligation that the Commission not grant consent.

…

96 In Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707 the Court of Appeal held that the characterisation of the use nominated in a development application as permissible with consent under an environmental planning instrument for the purposes of the EPA Act, Part 4, is a jurisdictional fact which the Land and Environment Court must determine for itself on the evidence before it.

97 In Dowe v Commissioner of the New South Wales Crime Commission [2007] NSWCA 296 a jurisdictional fact issue was perceived by the Court of Appeal to arise under the Law Enforcement (Controlled Operations) Act 1997, which provided:

(a) may authorise a law enforcement officer for the law enforcement agency concerned to conduct the operation …

98 The Court of Appeal by majority held that the question whether conduct is likely to seriously endanger health or safety was not an objective jurisdictional fact which must be determined on the basis of evidence adduced before a court, but was a subjective matter for final determination by the chief executive officer: at [32] – [33] per Spigelman CJ (Handley AJA agreeing, Basten JA dissenting). The majority regarded the pre-condition in s 7(1)(b) as “an emphatic instruction to the decision-maker” which did not amount to a jurisdictional fact.

99 The case went to the High Court which disagreed with the Court of Appeal majority: Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, 236 CLR 120. The High Court held at [43] – [47]:

“[43] The expression ‘jurisdictional fact’... [g]enerally … is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

R v Connell; Ex parte Hetton Bellbird Collieries Ltd

‘The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act – it is a condition of jurisdiction.’

[45] An instance in the LECO Act is the requirement in s 6(1) that the chief executive officer first have considered an application made under s 5 for the authority to conduct a controlled operation. The text of these provisions is set out earlier in these reasons.

[46] Section 7(1) of the LECO Act is expressed in the terms of prohibition and thus stands rather differently. The provision does not stipulate any criterion the satisfaction of which enlivens the exercise of a power or discretion. Rather, s 7(1) delimits the scope for any exercise of authority by a chief executive officer. There is no statutory power to grant an authority where the proposed operation involves any participant in the operation of any of the activities identified in paras (a), (b) and (c). That is the force of the expression ‘must not be granted’ in s 7(1). It conveys the notion of a contraction in the content of what would be the power otherwise conferred by s 6.

Evidence Act

100 A statute may require a decision-maker to make a decision without making the exercise of the power contingent upon a pre-existing, objectively determined fact: eg Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3, 166 FCR 54 at [32].

101 In Barrick Australia Ltd v Williams [2009] NSWCA 275, 168 LGERA 43 the Court of Appeal considered s 75W of the EPA Act, which provided that a proponent may request the Minister for Planning to modify the Minister’s approval of a project under Part 3A of the EPA Act and that the Minister may modify the approval (with or without conditions) or disapprove of the modification. If the request was for a “modification” within s 75W, the rigorous environmental assessment and ministerial approval regime relating to approval of a project in ss 75F to 75J did not apply. Notwithstanding the absence of reference to the satisfaction or opinion of the Minister in s 75W, a majority of the Court of Appeal (Basten JA, McColl JA agreeing) held that s 75W implicitly obliged the Minister to be satisfied that a request is for a “modification” within the meaning of s 75W; therefore the question whether the request was for a “modification” within the scope of s 75W was a matter for the Minister to assess and not the Court; and, consequently, judicial review of the request was confined to the higher hurdle of establishing that the Minister’s view “ was not reasonably open on the facts” (a task not undertaken by the applicant): at [35] - [36], [38]. The absence of precision in relation to what might constitute a “modification” of an approval formed part of the majority’s reasoning for considering that the legislature did not intend that it was a jurisdictional fact: at [53]. The third member of the Court of Appeal (Sackville J) concurred in the result but by a different route for his Honour considered that the making of a request that was limited to seeking a modification of approval was not an essential precondition for the exercise of the Minister’s power. The Court of Appeal left open the meaning of “modification of approval” in s 75W and the question whether any approval by the Minister must comply with objective standards in order to be lawful or whether it was sufficient for the Minister to be satisfied on certain matters (and if so what matters).

102 In Dates v Roads and Traffic Authority (NSW) [2009] NSWLEC 82, 167 LGERA 82 at [11] – [12] (decided before Barrick), I endeavoured to summarise propositions concerning the concept of jurisdictional fact that the authorities supported. I would expand that summary a little as follows:

Gedeon

Enfield

Timbarra

Dowe

Timbarra

Anvil Hill

Timbarra

Woolworths

Anvil Hill

Barrick

Wednesbury

Timbarra

Barrick

Timbarra

Woolworths

Enfield

Woolworths

Timbarra

103 In summary, the respondents’ submissions on jurisdictional fact are as follows. There is no limitation on the persons from whom the Minister may seek assistance by appointing them to a panel of experts save for independence (they are not to be officers of the Department or other public authorities having regulatory functions in connection with the project: s 75G(2)). In contrast to steps mandated by Part 3A in considering an approval application (including a report by the Director-General: s 75I), it was entirely a matter for the Minister whether she constitutes a panel of experts, what aspects were to be referred to the panel, and whether she placed any weight on the panel’s report. On the proper construction of the statute, the breadth of the statutory description “panel of experts” and the absence of legislative criteria for selection (apart from disqualifying criteria) indicate a legislative intention to leave the composition of a panel of experts to the Minister. That is confirmed by the second reading speech when Part 3A was introduced in which it was said that the Minister “will specify the make-up of the panel and the scope of the matters it is to investigate”. A variety of skills and experience may be required on a panel of experts including non-technical ones. The context of s 75G is Part 3A, which was introduced for the special purpose indicated by its title, “Major Infrastructure and Other Projects”. The scheme involves Ministerial control over access to Part 3A; Ministerial control over and accountability for Part 3A approvals; and provides a unified scheme for assessing major infrastructure and development of significance to the State. There is no warrant for importing a requirement that the panel members must be technical experts nor for importing the test of expert witnesses. Section 75G does not say that each person appointed to a panel of experts must be an expert. A conclusion of jurisdictional fact would add a layer of complexity to the Part 3A process, contrary to the legislative intention to streamline that process. Inconvenience arising from a jurisdictional fact conclusion is relevant to determining the parliamentary intention: Timbarra at [91]. The integrity of the process is sufficiently maintained by judicial review of the reasonableness of the Minister’s decision in the Wednesbury sense.

104 As regards validity, in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [91] (applied in numerous cases including Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6, 46 NSWLR 78 and Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261, 63 NSWLR 557 at [104] – [107]), the joint judgment held (omitting citations):

“…In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’”.

105 The applicant submits that as the panel was not properly constituted, its report was invalid and that any subsequent administrative action relying upon the report, such as the Minister’s approval, must also be invalid. The applicant submits that a number of factors confirm the legislative intention of invalidity if a member of the panel is not an expert: (a) the Minister had very few mandatory relevant considerations in making her determination but consideration of the Director-General’s report, which contained a copy of the panel report, in addition to a detailed consideration of its content, was one of them; (b) the panel’s public hearing process under s 75G(4) was arguably the primary form of public consultation envisaged by the legislature; (c) the right to a merits appeal by an objector and a proponent is lost if the project has been the subject of a report of a panel of experts under s 75G: ss 75K(1)(c), 75L(1)(c); and (d) absent statutory amelioration, a decision by a collegiate body, one member of which is disqualified for bias, is liable to be set aside (I W v City of Perth (1997) 191 CLR 1 at 50 per Gummow J) an approach which informs the exercise of discretion to set aside a decision produced as a result of consideration of a report of an invalidly constituted multi-member body.

106 The respondents submit that the following factors demonstrate that the function performed by a panel of experts under s 75G, when considered in the context of the broader scheme of Part 3A, is not indicative of a legislative intention to invalidate an approval if one member of the panel is not an “expert”: (a) the power s 75G confers on the Minister to create a panel is discretionary; (b) the purpose of the panel is to provide further assistance to the Minister beyond that which is mandated by statue, in respect of those aspects of a Part 3A project that are referred to it; (c) recommendations made by a s 75G panel are not binding. Neither the Director-General, nor the Minister, is required to accept the recommendations, the panel’s functions were purely advisory; (d) in deciding whether to approve the project under s 75J, the Minister has the benefit of the Director-General’s analysis of the panel’s report, in addition to the Director-General’s recommendations in relation to the project more generally; (e) although the Minister is required to consider the Director-General’s report and any accompanying reports, the ultimate decision as to whether to approve a project, with or without conditions, is for the Minister; (f) even if there was a breach of s 75G in the constitution of the panel, there was nonetheless substantial compliance with the overall process envisioned by the section because the panel contained two experts with technical skill and experience relevant to matters that the Minister referred and there is no attack on the conduct of the Panel’s review, the content of its report or on the Director-General’s comments upon it; (g) section 75G is not the source of the Minister’s power to approve the project; (h) the public inconvenience which would follow a finding of invalidity would be disproportionate as the steps already taken, at public expense, as well as at the expense of those who participated in the public consultation process conducted by the panel would have to be re-done even though there is no suggestion by the applicant that the panel reached any wrong result or applied any wrong process.

107 The respondents also submit that s 75X(5) supports their submissions to the extent of indicating that Parliament has considered the issue of invalidity and has omitted “consideration by a properly constituted panel of experts” from the list. I do not accept that s 75X(5) assists the respondents. It provides:

“The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project.”

108 Section 75X is an expression of Parliament’s intention that the only provision breach of which will necessarily lead to invalidity is s 75H(3). The consequence of breach of all other provisions is left at large, to be determined in accordance with the principles laid down in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355: see Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 at [29] – [32].

109 This is not a case of a decision by an invalidly constituted tribunal: for example, Attorney General of NSW v World Best Holdings Ltd [2005] NSWCA 261, (2005) 63 NSWLR 557.

110 The statute did not say that it was a condition of the exercise of the Minister’s power of approval or disapproval that there be a report of a panel of experts constituted under s 75G. If the statute had said that, the condition would not be satisfied in this case because, I have found, the report the Minister considered was not a report of a panel of experts constituted as the legislature intended under s 75G.

111 Rather, ss 75I and 75J said that if there was a report of a panel of experts constituted under s 75G, the Minister was obliged to consider the report before approving or disapproving a project. In the present case, the Minister in fact considered the report of a panel which, I have found, was not a panel of experts constituted under s 75G because it was not constituted as the legislature intended. That report was not a mandatory consideration because it did not have the prescribed statutory status. However, the report was not an irrelevant consideration (nor was that submitted) any more than if it had been commissioned and delivered to the Minister for consideration as a non-statutory report by other interested parties.

112 It follows, in my opinion, that neither the absence of a report by a panel of experts properly constituted under s 75G nor consideration of a report of a panel not constituted in accordance with s 75G, affects the validity of the Minister’s approval. I cannot discern a legislative intention to invalidate a ministerial approval if a member of the panel should not have been appointed to it.

113 In my view, the significance of my finding that the Project has not been the subject of a report by a panel of experts constituted as the legislature intended under s 75G, lies elsewhere. The significance is that there was a right of appeal to this Court under ss 75K and 75L by a proponent or objector who was dissatisfied with the determination of the Minister: see [75] above. That right of appeal was not excluded as it would have been if the panel of experts had been constituted as the legislature intended under s 75G. The present proceedings are not such an appeal.

114 Subsections 75K(1)(b) and 75L(1)(c) provide that those sections - which permit appeals by a dissatisfied proponent and objector to this Court - apply if “the project has not been the subject of a report of a panel of experts constituted under s 75G”. Those provisions stand rather differently from the concept of jurisdictional fact. They do not stipulate any criterion the satisfaction of which enlivens the exercise of a power or discretion. Rather, they contract the scope of those sections by excluding appeals by a proponent and by objectors in one situation.

115 If it be established, as I think it is, that in this case the panel was not constituted as the legislature intended under s 75G, then the proponent and objectors had rights of appeal to this Court and no question of unreasonable decision-making in constituting the panel arises: Gedeon at [47] (quoted at [99] above).

Discretion

116 As I have not upheld the panel of experts ground, it is unnecessary to rule on the respondents’ submission that I should exercise my discretion to refuse relief on that ground. I will do no more than record the competing considerations and refer to the legal principles.

117 The respondents submit that the Court should exercise its discretion to refuse relief on the panel of experts ground because of the applicant’s delay in seeking relief on that ground. The respondents’ complaint is that the composition of the panel of experts was a matter in respect of which objection should have been taken when the panel was conducting its review; but at no stage prior to these proceedings did the applicant do so notwithstanding that it made extensive submissions in relation to the Project generally including at the public hearing before the panel.

118 On the other hand, the applicant moved promptly for relief after the approval was granted, and the carrying out of the project pursuant to the approval has not commenced.

119 Delay is a discretionary factor. In SAAP v Minister for Immigration [2005] HCA 24, 228 CLR 294 at [80] (in the context of the discretion to issue constitutional writs) McHugh J said (omitting citations) that discretionary relief may be refused: “if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.” In Timbarra at [93] Spigelman CJ held: “However, remedies on judicial review are discretionary and may be refused, depending on the circumstances, including delay. The further a decision-making process has gone, in reliance on the validity of a decision not to require a species impact statement, the more difficult it will be for an applicant to obtain relief”. In Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57, 204 CLR 82 at [55] – [56] Gaudron and Gummow JJ emphasised that the Court should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws that govern their exercise, but that a circumstance which may attract an exercise of discretion adverse to an applicant is if the applicant has been guilty of “unwarrantable delay” (quoting from R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR 389 at 400). In some circumstances an applicant who seeks relief before an approval is granted may run the risk that they will be held to have moved prematurely, as is illustrated by the decision in Barrick: see [101] above.

s 75J

120 Section 75J(5) of the EPA Act provides:

“The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent…”

121 The Minister’s approval was expressed to be “subject to the conditions of approval in Schedule 2 and the Statement of Commitments in Schedule 3”. In fact, no Schedule 3 or Statement of Commitments was attached to the Minister’s determination. Condition A2 of the approval required the development to be in accordance with the revised Statement of Commitments. “Statement of Commitments” is defined in the approval to mean “the Statement of Commitments (as they apply to this Project) made by the Proponent”.

122 The applicant submits that (a) that there is no indication of what is meant by “the revised Statement of Commitments”; (b) there was no Statement of Commitments incorporated into the approval; (c) no Statement of Commitments had been approved by the Minister; and (d) the terms of the Minister’s approval did not specify the statement of commitments which had been approved.

123 Consequently, the applicant submits, the Minister’s approval is void and the failure to specify the Statement of Commitments is a breach of s 75J(5); alternatively, there was no approval at all because the approval was made by reference to the Statement of Commitments and consequently lacked finality or certainty: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277 at [24]; Mid-Western Community Action Group Inc v Mid-Western Regional Council [2007] NSWLEC 411 at [21].

124 I do not accept the applicant’s submissions on the third ground for the reasons submitted by the respondents, as follows.

125 Condition A2 in Schedule 2 of the Minister’s approval provided (bold emphasis in original, underlining emphasis added):

“ A2 Development in Accordance with Plans and Documentation

NSW Sport and Recreation Southern Highlands Regional Shooting Complex Environmental Assessment

except where varied

NSW Sport and Recreation Southern Highlands Regional Shooting Complex Submissions Report

including the revised Statement of Commitments and all Appendices

126 It is clear from that condition that the Statement of Commitments with which the proponent was required to comply was that contained in the proponent’s Preferred Project Report, dated July 2008. That Report was made publicly available.

127 In the face of that condition, the applicant’s submissions stated at [122] above cannot be sustained. In circumstances where the Minister has specified the Statement of Commitments she intended to apply in respect of the approval, the omission of a formal schedule containing the Statement of Commitments is not productive of uncertainty, nor does it result in the approval being ineffective or invalid. There is no breach of s 75J(5), which does not impose any obligation on the Minister in relation to a statement of commitments, instead providing that the conditions of approval may require the proponent to comply with any obligations in a statement of commitments made by the proponent.

128 I have upheld the applicant’s first ground of challenge and rejected the other grounds. I propose the following relief:

EPA Act

129 The parties are to bring in agreed or competing draft orders to reflect my conclusions within two working days. I will hear the parties on costs if they are not agreed. The exhibit may be returned.

Citations

Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185

Most Recent Citation

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Ironstone Community Action Group Inc v NSW Minister for Planning [2011] NSWLEC 195

Cases Cited

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Statutory Material Cited

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IW v City of Perth [1997] HCA 30

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CITATION:	Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185
PARTIES:	APPLICANT: Hill Top Residents Action Group Inc FIRST RESPONDENT: Minister for Planning SECOND RESPONDENT: NSW Sport and Recreation
FILE NUMBER(S):	40333 of 2009
CORAM:	Biscoe J
KEY ISSUES:	JUDICIAL REVIEW :- whether major project approval for a regional shooting complex under s75J Environmental Planning and Assessment Act 1979 was void and whether any work pursuant to the approval would be unlawful by virtue of cl 11 Part 33 Schedule 3 to State Environmental Planning Policy (Major Projects) 2005 or because one of three members of panel of experts constituted under former s 75G was not an expert or because approval lacked finality and was in breach of s 75J(5)
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 4, 26, 30, 31, 75A, 75B, 75E - 75L, 75P, 75R, 75W, 75X, 75ZA, 76, 76A, 76B, 77(3), Pt 3A, Pt 4 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill 2005 Environmental Planning and Assessment Regulation 2000, cl 8O Law Enforcement (Controlled Operations) Act 1997, ss 6, 7 Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy (Major Projects) 2005, cll 2, 6(1), 7, cl 15(3) Schedule 1, cll 1, 2(2), 3, 5 - 11 of Pt 33 Schedule 3 State Environmental Planning Policy (Major Projects) 2005 (Amendment No 33), cll 2, 3, 5 Wingecarribbee Local Environmental Plan 1989
CASES CITED:	Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3, (2008) 166 FCR 54 Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261, (2005) 63 NSWLR 557 Barrick Australia Ltd v Williams [2009] NSWCA 275, (2009) 168 LGERA 43 Chambers v Maclean Shire Council [2003] NSWCA 100, (2003) 57 NSWLR 152 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, (2007) 151 LGERA 400 CIC Insurance Ltd v Bankstown Football Club Ltd (1995-1997) 187 CLR 384 Clark v Ryan (1960) 103 CLR 486 Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69, (2009) 167 LGERA 52 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, (2000) 199 CLR 135 Dates v Roads and Traffic Authority (NSW) Pty Ltd [2009] NSWLEC 82, (2009) 167 LGERA 82 Dowe v Commissioner of the New South WalesSW Crime Commission [2007] NSWCA 296 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, (2008) 236 CLR 120 I W v City of Perth (1997) 191 CLR 1 Kindimindi Investments Pty Ltd v Lane Cove Council ([2006] NSWCA 23, (2006) 143 LGERA 277 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705 Mid-Western Community Action Group Inc v Mid-Western Regional Council [2007] NSWLEC 411 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48, (2008) 82 ALJR 1505 Minister for Immigration and Citizenship v SZJGV (2009) HCA 40 Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 Newcastle City Council v Royal Newcastle Hospital (1956-1957) 96 CLR 493 Peters v Manly Municipal Council [2007] NSWCA 343 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR 389 Re Bolton Ex parte Beane (1987) 162 CLR 514 Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57, (2000) 204 CLR 82 Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87, (2007) 153 LGERA 372 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 SAAP v Minister for Immigration [2005] HCA 24, (2005) 228 CLR 294 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55 Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6, (1999) 46 NSWLR 78 Weal v Bottom (1966-67) 40 ALJR 436 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707
DATES OF HEARING:	5, 6, 25 August 2009
DATE OF JUDGMENT:	24 November 2009
LEGAL REPRESENTATIVES:	APPLICANT: Mr T. Robertson SC with Mr J. Lazarus (barrister) SOLICITORS: Environmental Defender's Office FIRST RESPONDENT: Mr N. Williams SC with Ms A. Mitchelmore (barrister) SOLICITORS: Department of Planning SECOND RESPONDENT: Mr M. Hall (barrister) SOLICITORS: Crown Solicitor's Office (NSW)