Hollis v Shellharbour City Council

[2002] NSWLEC 83

Land and Environment Court

of New South Wales

CITATION:

Hollis v Shellharbour City Council [2002] NSWLEC 83

PARTIES:

APPLICANT
Kimberly Hollis

FIRST RESPONDENT
Shellharbour City Council

SECOND RESPONDENT
Miltonbrook Managements Pty Ltd

FILE NUMBER(S):

40190 of 2001

CORAM:

Pain J

KEY ISSUES:

Administrative Law :- jurisdictional error of fact - whether invalid development consent could be modified

Designated Development :- characterisation of development - whether designated development - when to assess whether designated development

Judicial Review :- jurisdictional error of fact - validity of development consent - whether invalid development consent could be modified

Words and Phrases :- meaning of natural waterbody - meaning of maximum aggregate surface area - meaning of artificial waterbody

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 5, s 77A, s 78A, s 79, s 81A(3), s 96(1A), s 97, s 98, s 102, s 123
Environmental Planning and Assessment Regulation 1994 cl 53C, Sch 3 Pt 1, Sch 3 Pt 3
Migration Act 1958 (Cth)
Rivers and Foreshores Improvement Act 1948

CASES CITED:

Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404;
Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312;
Calvin v Carr [1980] AC 574;
Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294;
CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGERA 270;
Craig v South Australia (1995) 184 CLR 163;
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135;
Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649;
F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGERA 306;
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157;
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242;
Hawkesbury County Council & Anor v Sammut [2002] NSWCA 18;
Helman v Byron Shire Council (1995) 87 LGERA 349;
Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76;
Lyne v Moree Plains Shire Council (1999) 110 LGERA 120;
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11;
MLC Properties v Camden Council (1997) 96 LGERA 53;
Moore & Anor v Yarrowlumla Shire Council [2002] NSWLEC 62;
Penrith City Council v Waste Management Authority & Anor (1990) 71 LGRA 376;
Save Blue Lagoon Action Group Incorporated v Kelvest Pty Ltd and Wyong Shire Council (1993) 81 LGERA 144;
Scurr v Brisbane City Council (1973) 133 CLR 242;
Smith v East Elloe Rural District Council [1956] AC 73;
Swadling v Sutherland Shire Council (1994) 82 LGERA 431;
Timbarra Protection Coalition v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 102 LGERA 52;
Wolgan Action Group Inc v Lithgow City Council (2001) 116 LGERA 378

DATES OF HEARING:

19, 20, 21 March 2002

DATE OF JUDGMENT:

05/30/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Robertson SC
SOLICITORS
Woolf Associates

FIRST RESPONDENT
Mr C McEwen (Barrister)
SOLICITORS
Peedoms

SECOND RESPONDENT
Mr J Ayling SC
SOLICITORS
Kearns & Garside

JUDGMENT:

KIMBERLY HOLLIS

Applicant

v

SHELLHARBOUR CITY COUNCIL

First Respondent

MILTONBROOK MANAGEMENT PTY LTD

Second Respondent

JUDGMENT

Introduction

1. These are Class 4 proceedings seeking declarations that the decision of the First Respondent to grant development consent to the Second Respondent for a subdivision and related works for Tullimbah Village near Albion Park is invalid. The Applicant’s original Points of Claim alleged that the development for which consent was given was designated development within the meaning of s 77A of the Environmental Planning and Assessment Act 1979 (EP&A Act). Accordingly, an environmental impact statement (EIS) should have been prepared and accompanied the development application (DA) as required by s 78A(8)(a) of the EP&A Act. It was common ground between the parties that no EIS had been prepared. In the absence of an EIS, the Applicant alleged that no development application had been made within the meaning of Pt 4 of the EP&A Act.

2. The Applicant commenced Class 4 proceedings on 17 October 2001. On 26 February 2002 the First Respondent modified the development consent on the application of the Second Respondent. An Amended Class 4 Application and Amended Points of Claim were filed by the Applicant in Court on 19 March 2002. They challenged the modified consent on the basis that the earlier consent was invalid and could not be modified.

Facts

3. The Second Respondent lodged a DA with the First Respondent on 27 April 2000 for the subdivision of land (of which part was owned by the First Respondent and part by the Second Respondent jointly with IMB Land Pty Ltd) near Albion Park, to be called Tullimbah Village, for 895 residential allotments and related works. The primary document constituting the DA was titled "Statement of environmental effects to support new residential development at Tullimbah Village". Given the size of the proposal to be developed on a "greenfields" site, the documentation supplied by the Second Respondent to the First Respondent was extensive.

4. Various aspects of the work needed to underpin such a substantial subdivision were included in documents forming part of the DA prepared for the Second Respondent, but were submitted after the DA was filed. Additional documents provided in this manner included, most relevantly for these proceedings, the Cooback Creek Stormwater Strategy - "Options" Report and Concept Plan – Tullimbah Village, Albion Park, dated February 2000 (Stage 1 Report), and Hazelton Creek Stormwater Strategy, dated June 2000 (Stage 2 Report) both prepared by Forbes Rigby Pty Limited, consulting engineers. It should be noted that Cooback Creek and Hazelton Creek are the same watercourse for the purposes of these proceedings.

5. The proposed development includes a number of ponds and other construction aimed at stormwater management. It also involves modifying part of the position of Cooback/Hazelton Creek.

6. Because of the provisions of the relevant Development Control Plan (DCP) the proposed development constitutes advertised development and was publicly exhibited. At least one public workshop was held on 26 October 2000.

7. Consent to do work was required from the Department of Land and Water Conservation (DLWC) under the Rivers and Foreshores Improvement Act 1948. The DLWC issued general terms of approval by letter dated 27 October 2000. Time for public comment on the proposed development was extended to 10 November 2000.

8. The First Respondent granted conditional consent for DA 336 of 2000 on 21 June 2001, imposing 154 conditions. The conditions included the General Terms of Approval required by DLWC, which were conditions 137 to 154.

9. There is only one mention of designated development in the First Respondent’s files and that is to the effect that an EIS is not required as the development is not designated. This is stated in the report prepared for the First Respondent by Martin Morris & Jones Pty Ltd, who conducted an application processing "audit" for the First Respondent in May 2001.

10. On 17 October 2001, Class 4 proceedings were commenced by the Applicant. The First Respondent granted modifications to the consent on 26 February 2002. The principal modification to the development approved by the First Respondent involved a reconfiguration of the ponds in and around the proposed subdivision development.

11. A number of legal and factual issues have arisen for determination in this case as follows:

1. How should the development the subject of DA 336 of 2000 be characterised?
2. Is the development designated development under Sch 3 of the Environmental Planning and Assessment Regulation 1994 (the EP&A Regulation) (Due to transitional provisions, the 1994 Regulation applied to this consent)?
3. If it is designated development, can it be modified?
4. If it can be modified, is the modified development designated development?

12. The First Respondent largely adopted the submissions of the Second Respondent and so the arguments of the Respondents are dealt with collectively.

13. Expert evidence of Dr Emmett O’Loughlin, hydrologist, was filed for the Applicant in two affidavits dated 26 November 2001 and 15 March 2002. Expert evidence was also filed for the Respondents in four affidavits of Paul Nichols of Forbes Rigby Pty Ltd dated 12 December 2001 (the first affidavit), 18 January 2002 (the second affidavit), 12 February 2002 (the third affidavit) and 15 March 2002 (the fourth affidavit). There was no cross-examination of the expert witnesses.

1. How should the development the subject of DA 336 of 2000 be characterised?

14. In the Notice of Determination of a Development Application 336 of 2000 issued by the First Respondent the consent is said to be for Torrens Title Subdivision.

15. "Designated development" is defined by s 77A of the EP&A Act to mean "development that is declared to be designated development by an environmental planning instrument or the regulations". Clause 53C of the EP&A Regulation provides that development in Sch 3 is designated. The preamble in Pt 1 of Sch 3 states that "development for the undermentioned purposes or development of the undermentioned types is designated".

16. Subdivision development is not designated development as defined by s 77A of the EP&A Act. It is therefore necessary to consider the overall purpose of the development. If the development is characterised as for the purpose of subdivision, it is not designated development and the Applicant must fail.

17. The Applicant argued that the purpose of the development, while for a subdivision, was also for a range of other works including stormwater and water management for the site. This involved substantial works to be undertaken, including the modification of the Hazelton/Cooback Creek and the construction of several artificial waterbodies. The construction of these artificial waterbodies was not just incidental to, or ancillary to, the subdivision. Schedule 3, Pt 1 of the EP&A Regulation provides that designated development includes:

Artificial waterbodies

(1) with a maximum aggregate surface area of water of more than 0.5 hectares located:
a) in or within 40 metres of a natural waterbody…

18. Accordingly, if the development is characterised as being for the purpose of more than one use, namely subdivision and stormwater management including various artificial waterbodies to which Pt 1 of Sch 3 applies, the development is designated.

19. The Applicant points to the DA and supporting documents, particularly the Stage 2 report and the conditions of consent issued by the First Respondent, to show that the development was not only for subdivision but substantial stormwater and water management works which include several artificial waterbodies. The Applicant argues this is clear from the conditions of consent, particularly individual conditions 10 - 15,18; Sediment Control and Water Quality Control - conditions 73 - 75; DLWC - General Terms of Approval for Protected Lands under the Rivers and Foreshores Improvement Act - conditions 137-147; and DLWC General Terms for Works in the Riparian Corridor - conditions 148-154. A key condition for the purposes of this case is Condition 141 which provides that:

All work is to be consistent with the section, "Water & Stream management" contained in Council’s Development Control Plan (DCP) no 5/98 – Tullimbah Village (Western Valley) and "Hazelton Creek Stormwater Strategy – Stage 1 and 2 Reports" (Forbes Rigby Pty Ltd dated February and June 2000 respectively).

20. The Applicant also argued that the terms of the conditions of development consent made clear that no further development consents were required for the more detailed construction work to follow. The development consent conditions clearly provided for construction certificates to issue for further works approvals in condition 85, but not further development consents.

21. The DA describes the relationship of the DA to the Tullimbah Village project as a whole (at 1, 61 and 63). The DA under consideration is part of a larger integrated project which extends over the Hazelton Creek Valley at Albion Park. This application relates to land in the lower part of the valley. The subdivision of the land (which includes part of the land owned by the First and Second Respondents), construction of the ponds, and the various other matters described in the development application comprise the initial stages (Stages 1 and 2) of the development of the valley. Land further up the valley, which is owned by a number of different land holders including the First and Second Respondents, is to be progressively developed over a number of years. Stormwater from these later stages will also feed into the ponds constructed in Stage 2.

22. The Respondents argued that the development can be characterised as for subdivision only. That is what the notice of development consent clearly provided. The Statement of Environmental Effects which constituted part of the DA was referred to where, in cl 1.3, it is stated that the DA seeks approval for subdivision of areas shown in Figure 1, including street networks, stormwater management and creek rehabilitation, public open spaces, a primary school site, several "superlots" and residential lots. The Respondents argued that it could be expected that any application for subdivision would incorporate such matters. The fact that stormwater management and creek rehabilitation works were included did not alter the overall purpose of the development as being for subdivision. The Respondents relied on the authorities in relation to characterisation, discussed below, to argue that the development could be characterised as for subdivision only.

23. The Respondents referred to Nichols' first affidavit where the preliminary nature of the work set out in the Stage 2 Report is emphasised at par 4 and 5. The purpose of these reports is referred to in the affidavit of Paul Nichols sworn on 12 December 2001 (filed by the Second Respondent) at par 2 - 4:

The Stage 1 report was a stormwater management strategy study for the proposed Tullimbah Village development. It contained options for reducing flooding and improving water quality within the Tullimbah Village development site. It was intended that the Stage 1 report would lead to a further report containing preliminary designs for a stormwater management strategy to support the submission of a development application for the residential subdivision of Tullimbah Village.
Page 2 of the Stage 2 Report contains the following description of its purpose:

"This Stage 2 report flows on from the work carried out in stage 1, and involves the preparation of preliminary designs of the different elements of the proposed Hazelton Creek Parkway including water quality ponds, creek channel, floodway and creek crossings. These designs have been developed for the purpose of demonstrating the consistency of the proposed creek rehabilitation works with the urban form proposed in the current DA.

The Stage 2 preliminary designs will form the basis for future (Stage 3) detailed designs which will be used for final approval and construction purposes."

24. The Respondents also referred to numerous examples in the DA and supporting documentation of references to the preliminary nature of the drawings provided to the First Respondent.

25. The Respondent also referred to the EP&A Act, amended in 1997 to provide in s 81A(3) that:

A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.

26. This, it was suggested, indicated that subdivision development could encompass a range of other works as ancillary to the subdivision within the application for subdivision.

27. Cases referred to in support of the Respondents' arguments on the appropriate approach to characterisation were Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 and Lyne v Moree Plains Shire Council (1999) 110 LGERA 120. In Lyne, Pearlman J in obiter remarks held that the sewerage removal system constituted a use of the specified allotments which was subordinate to the dominant purpose of subdivision. Her Honour reached a similar conclusion in a recent decision in Moore & Anor v Yarrowlumla Shire Council [2002] NSWLEC 62.

28. The passage from the judgment of Glass JA in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 is often cited in subsequent cases as a statement of the test to be applied where the task is to characterise the development which is proposed. At 161 his Honour said:

It may be deduced that where a part of the premises 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…. Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.

29. In Canyonleigh, the applicant had made a development application to construct a tourist facility. The application included a proposed on-site sewage system, including three sewage treatment plants. The Respondent concluded that the sewage system constituted designated development and therefore an EIS was required. Bignold J held that the sewage system was a purpose that was subordinate to the dominant purpose of the tourist development and the development was not therefore designated.

30. The Applicant relied on Penrith City Council v Waste Management Authority& Anor (1990) 71 LGRA 376 (as did the applicant in Canyonleigh). The key principle to be gleaned from the Penrith case, and repeated by Bignold J in Canyonleigh, is that the question of characterisation of a development is always a matter of fact and degree to be considered in all the circumstances of the case.

31. In Penrith, the Respondent had applied for development consent for a dry waste depot. The depot would involve extracting large amounts of earth in order to provide space for landfill. The Applicant determined that the application was designated development, falling within the definition of “extractive industries”. The Court of Appeal held that the development was designated development.

32. The Applicant also relied on Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404. In Baulkham Hills, an existing use rights case, the issue was whether soil and sand extraction was an independent or ancillary use to the use of the land as a riding school. In the Court of Appeal Meagher JA (Samuels AP and Clarke JA agreeing) found that the two uses were independent uses. The use of extraction could not be said to be ancillary to the use of the land as a riding school. The mere fact:

that in 1976 some of the extraction was motivated by, and angled towards, the improvement of the riding school does not mean that it was not of itself an independent use . … Notwithstanding the principles laid down in Foodbarn , it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. (at 409)

33. In support of their argument the Applicant also relied on CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGERA 270 and Save Blue Lagoon Action Group Incorporated v Kelvest Pty Ltd and Wyong Shire Council (1993) 81 LGERA 144.

34. I am satisfied that in the circumstances of this case the stormwater management and water management works, including several water quality ponds, are substantial works which are not merely subservient to the purpose of subdivision and are an independent use of the site. The works have a purpose beyond the subdivision given their significance for water management for the whole valley. Although I note that each case must be decided on its own facts, as the parties relied on these cases, I note that this case can be seen as more analogous to Baulkham Hills and Penrith than the factual circumstances in Canyonleigh. The development must therefore be characterised as relating not only to subdivision, but also to stormwater management and water management works, which includes the construction of several water quality ponds and modification of the creek.

35. I also note the Respondents' reference to s 81A(3) of the EP&A Act, which allows for consent granted to a subdivision application to include consent for the "carrying out of any physical activity….in connection with the subdivision including the construction of stormwater drainage systems". However, in my opinion, what the Respondent proposes could not fairly be described as simply "stormwater drainage systems" within the contemplation of s 81A(3). Nor could it otherwise fall within this section. What the Respondent proposes extends beyond that section, in the manner that I have just described.

36. It is now necessary to consider whether the development so characterised constitutes designated development within the meaning of Pt 1 of Sch 3 of the EP&A Regulation. The outcome of this question is not a straightforward matter.

2. Is the development designated development within the meaning of the EP&A Regulation Sch 3?

37. On the facts of this case, three main issues arise in relation to the application of Sch 3, Pt 1 which relevantly states that designated development is: "artificial waterbodies…with a maximum aggregate surface area of water of more than 0.5 hectares located… in or within 40 metres of a natural waterbody". The three questions are:

(i) were the artificial waterbodies within 40 metres of a natural waterbody?

(ii) what is the meaning of "maximum aggregate" surface area in determining if the threshold of 0.5 hectares has been reached?

(iii) do the artificial waterbodies in question meet the definition in Sch 3?

38. In order to answer these questions it is necessary to look in some detail at what is proposed by the Second Respondent in relation to the layout and size of the ponds to be constructed. The Stage 2 Report suggested that there was to be a Village Pond constructed and a separate interlinked series of six ponds within the Hazelton Creek wetland. A copy of Annexure C to Nichols first affidavit is annexed to this judgment. This shows the proposed ponds, Ponds 1 to 6, between points W and Z, and the Village Pond between points X and Y. It should be noted that Annexure C incorrectly shows that Pond 1 has no permanent pondage.

39. At par 8 and 9 of Nichols' first affidavit and par 9 to 19 of Nichols' second affidavit the nature of the work to be undertaken in relation to the existing Hazelton/Cooback Creek system is explained. There will clearly be substantial modification to the existing Hazelton/Cooback Creek both within its existing watercourse and also in diverting and filling in parts of the existing creek.

40. The Village Pond, Ponds 1, 2 and 6 and other smaller pond areas at Y, X and W (marked on Annexure C) are partly within 40 metres of Hazelton /Cooback Creek, which is the natural waterbody that currently exists (see Annexure C - the purple dotted line represents the position of the existing Hazelton/Cooback Creek. The distance of 40 metres from the Creek is represented by a red dotted line on either side). The Stage 2 Report at 13 and 14 states that:

During periods of low flow the proposed village pond will have an operating water surface level of 17.7 m AHD. This equates to a water surface area of approximately 0.55 ha. During storm events, the pond level will rise approximately 0.5 m to a maximum water surface level of 18.2m AHD, giving a surface area when full of 0.65 ha…. During periods of low flow the proposed Hazelton Creek Wetlands will have a combined water surface of approximately 1.2 ha.

41. At par 14 and 15 of his affidavit dated 26 November 2001, Dr O'Loughlin noted the conclusions of the Stage 2 report and stated that he had measured the area of the Village Pond (excluding the Refuge Island in the middle) from the Second Respondent's drawing No. 2004 and concluded that it covered an area in excess of 0.5 hectares at its normal operating level (which included an area under the boardwalk).

42. If correct, the threshold of 0.5 hectares in surface area required for designated development would be reached, depending on whether there was a natural waterbody within 40 metres. This is discussed further below in relation to question (i).

43. There was some dispute between the experts on how the areas of water in the ponds were to be measured. In his first affidavit Nichols reduced his estimate of the area of the Village Pond stated in the Stage 2 Report (0.55 hectares) to 4855 metres (0.4855 hectares) using a computer generated digital terrain model (Autocad). He stated that the calculations in his affidavit were more accurate than the "by hand" calculations which formed the basis of the estimates in the Stage 2 Report by a significant amount i.e. +/- 1 or 2 % accuracy compared to +/-10% accuracy respectively. He also excluded the area under the boardwalk because he said this had been erroneously included in the calculation in the Stage 2 report.

44. There was a dispute between the Applicant and Respondents as to whether the evidence showed that water was in fact located under the boardwalk in the Village Pond and therefore could be counted as part of the surface area. The Applicants sought to rely on documents provided with the original development application, such as the landscape plan, which they say suggested that there was water in this area. The Respondents stated there was no intention to include water in this area. Nichols' second affidavit at par 7 states that the surface area calculation for the Village Pond in the Stage 2 Report incorrectly included the area under the boardwalk.

45. It is agreed between the parties that the question of whether a development is designated is a question of jurisdictional fact. For reasons outlined later in this judgment at par 76 - 77. I agree with this submission. What evidence can the Court have regard to in deciding what is the jurisdictional fact? In Corporation of the Cityof Enfield v Development Assessment Commission (2000) 199 CLR 135 the High Court considered the court's role in deciding matters of jurisdictional fact. Where the decision-maker errs as to jurisdictional facts the court must make a decision on the evidence placed before it (at 146). This means I am not restricted to matters that were before the First Respondent when it made its decision to grant development consent. In this case Nichols' affidavits are also relevant to the matters in issue, as well as the Stage 2 report which was before the First Respondent. I accept Paul Nichols' affidavit evidence that it is intended that there is no water under the boardwalk in the Village Pond. Accordingly it is necessary to look beyond the Village Pond to see if there are other ponds to which Sch 3 of the EP&A Regulation applies.

46. In order to meet the threshold of 0.5 hectares the Applicant needs to identify further artificial waterbodies within 40 metres of a natural waterbody to satisfy Pt 1 of Sch 3. Precisely which ponds can be considered depends on the answers to the three questions posed and the evidence presented by the parties. Both parties' experts draw on Annexure D to Nichols' first affidavit to draw conclusions about a key issue, the surface area of water in the various proposed ponds. Annexure D is also annexed to this judgment.

Q (i) Were the artificial waterbodies within 40 metres of a natural waterbody

47. The Respondents argued that to assess whether Sch 3, Pt 1 applied one must look at the position of the artificial waterbodies in relation to the natural waterbody as modified by the proposed development. Where, as in this case, the natural waterbody would be so changed/filled in/removed that it could no longer be said to be the natural waterbody for much of its length, or at all, then Pt 1 of Sch 3 would not arise. Two questions arise:

a) when is it appropriate to assess whether a development is designated, before the proposal is carried out or based on the outcome of the proposal?

and

b) if the answer to (a) is that the outcome of the proposal is the appropriate point, does the original development proposed so alter the existing creek that it is no longer a natural waterbody?

48. The Applicant argued the appropriate time to undertake an assessment of whether a development is designated is before the proposal is undertaken. The Respondents argued the appropriate point to consider is the outcome of the proposal.

49. Dr O'Loughlin concluded in his affidavit dated 26 November 2001 at par 16 that Hazelton/Cooback Creek is a natural waterbody as defined by the EPA Regulation. This evidence was directed to the creek as it currently exists i.e. before the proposed development has taken place. I accept this evidence.

50. The task of assessing whether development is designated and the nature of its environmental impact arises at the time of the development application for a particular proposal. I therefore do not agree with the Respondents’ construction of Pt 1 of Sch 3. If the Respondents are correct, the result would mean that substantial changes could be made in and around (as in this case) an existing natural waterbody with potentially major environmental consequences resulting from artificial waterbodies and the provisions of Pt 1 of Sch 3 would not arise. The preferable construction of Pt 1 of Sch 3 is that the assessment of whether a development is designated ought to be made in relation to the environment that exists before a proposal is built.

51. Given my conclusion on question (a) it is unnecessary to look at question (b). Accordingly I find there is a natural waterbody to which Pt 1 of Sch 3 can apply.

Q (ii) Meaning of "maximum aggregate surface area" in Pt 1 of Sch 3

52. Considering first the word "aggregate", the Applicant argued that "maximum aggregate surface area" [emphasis added] meant the total surface area of all the waterbodies situated partly or wholly (not just wholly) within 40 metres of a natural waterbody. This would include the Village Pond and Ponds 1, 2 and 6. Further, Ponds 1 to 6 are, on the evidence in the Stage 2 report, one system so should be counted together, the Applicant submitted. In other words, ponds not within 40 metres of the creek should be included (i.e. Ponds 3, 4 and 5) as well as Ponds 1, 2 and 6, which are partly within 40 metres of the existing creek, because they are all part of the same wetland/water quality system.

53. The Applicant referred to the EIS report prepared by the Department of Urban Affairs and Planning (DUAP) at the time Sch 3 was being modified to support an argument that it was intended that works cover systems of waterbodies, or a whole drainage system. Aggregate means that all the bodies in a given system are added together. This, it was argued, is both a literal and purposive application of the wording.

54. The Respondents argued that maximum aggregate surface area does not mean that all the ponds are added together as the Applicant proposes. The proposal should not be treated as one system but rather, as the Village Pond is clearly quite separate from the other system of ponds (Ponds 1 to 6), as two distinct systems. If the boardwalk area is not included as the Respondents submit, and I have accepted, the threshold of 0.5 hectares is not met by the Village Pond.

55. Further, the Respondents submitted, the other pond system (Ponds 1 to 6) also does not meet the 0.5 hectare threshold because not all of Ponds 1 to 6 should be counted. The Respondent argued that Ponds 1 to 6 should not be aggregated (producing a figure in excess of 0.5 hectares if they were added). Firstly, the Respondent argued that Ponds 2, 3 and 4 are intermittent only and therefore, do not fall within the definition of an "artificial waterbody" (this issue is to be discussed more fully under issue (iii)). Secondly, as a consequence of the first, Ponds 1, 5 and 6 should not be aggregated because the length of that system of ponds is several hundred metres and Pond 5 is quite distant from Pond 1 and from a natural waterbody (i.e. it is more than 40 metres away). As the purpose of Pt 1 of Sch 3, made clear in the DUAP EIS Report, is to protect natural waterbodies, it is clearly not in conformity with that purpose to include waterbodies not in proximity to the natural waterbody. Pond 1 is an area of 2,413 square metres (at low flow) and is less than the 0.5 hectares threshold. Pond 6 is an area of 646 square metres (at low flow) and is also less than the threshold (even if added with Pond 1).

56. In my opinion "maximum aggregate surface area" [emphasis added] in this case means the total of the whole surface area (i.e. not just the part that lies within the 40 metre zone) of artificial waterbodies, which are wholly or partly within 40 metres of a natural waterbody, for the drainage system as a whole (what is meant by “maximum” and therefore what surface areas are used in the calculation of the threshold is discussed below). Part 1 of Sch 3 of the EP&A Regulation does not distinguish between different systems within the one proposal, as the Second Respondent argues, nor should it be interpreted as doing so. The test in the EP&A Regulation is whether the artificial waterbodies (plural) are “in or within 40 metres of a natural waterbody”. The fact that the waterbodies may be different components within an overall water management system, as the Respondents argue, is not a purposive construction of these words in my view. Those waterbodies wholly or partly within 40 metres affect the same natural waterbody.

57. Furthermore, in appropriate cases, where it can be shown that there is a series of artificial waterbodies that are connected so as to form a system, and some of the artificial waterbodies within that system lie within 40 metres of a natural waterbody, then the surface areas of all the artificial waterbodies in that system should be included in the calculation of "maximum aggregate surface area". In this case, provided all other thresholds are met, this would mean Ponds 1 to 6 could be aggregated for this purpose. However a final determination on this point depends on the outcome of question (iii).

58. The next issue to consider is what is meant by “maximum” in the phrase “maximum aggregate surface area”.

59. The Respondents argued that it is only areas of permanent pondage that are relevant. Essentially the Respondents' argument is that the definition in Sch 3, Pt 1 should be read as "artificial water bodies that have a maximum aggregate surface area of [permanent] water of more than 0.5 of a hectare", the word permanent being inserted for illustrative purposes. The Applicant relied on the "low flow" figures in Annexure D to Nichols' first affidavit, which are water levels higher than the areas of permanent pondage, as reflective of the appropriate maximum level on the evidence in this case.

60. In my opinion, “maximum” in this phrase cannot be represented by the total surface area subject to permanent pondage, it must be something more than that. “Maximum” must be understood as the surface area of water that each pond could hold at full capacity. Therefore, in summary, the maximum aggregate surface area is to be found by totalling the whole surface area (when at full capacity) of each artificial waterbody that lies wholly or partly within 40 metres of a natural waterbody. When there is a system of artificial waterbodies and some of those artificial waterbodies lie within 40 metres of a natural waterbody, the entire system should be included in the calculation.

61. I note that there was some reference in the Stage 2 report (at 13 and 14) to the capacity of the ponds when full. The figure in regards to the Village Pond was said to be 0.65 hectares. Because Nichols states in his second affidavit that he incorrectly included the area under the boardwalk in these calculations, it is unclear what the surface area of the pond at full capacity would be. It is also unclear what the individual surface areas for Ponds 1 to 6 are, as only a figure for the whole of those ponds is given (at 14). Based on the evidence provided to the Court, it must be accepted that the “maximum” surface area of each pond is at least the surface areas indicated in the first column entitled “total surface areas inundated during ‘low flow’” in Annexure D to Nichols' first affidavit.

62. It is now necessary to consider whether all the ponds are artificial waterbodies, as defined in the EP&A Regulation and then to determine whether the ponds found to be artificial waterbodies meet the threshold, given my finding on the meaning of "maximum aggregate surface area".

Q (iii) Do the artificial waterbodies meet the definition in Sch 3?

63. There is no definition in the EP&A Act or the EP&A Regulation of an artificial waterbody. However, "waterbody" is defined in Sch 3 Pt 3 as:

(b) an artificial waterbody, including any constructed waterway, canal, inlet, bay, channel, dam, pond or lake, but does not include a dry detention basin or other construction that is only intended to hold water intermittently.

64. According to par 6 of Nichols first affidavit the drawings in the Stage 2 Report:

show a series of ponds relating to stormwater and pollution control within the Tullimbah Village development site. These ponds contain a variety of depths; with different areas designed:

· to be permanently underwater, even in dry times; or

· to be inundated by water only during times of rainfall and immediately thereafter; with those intermittently inundated areas containing macrophytes.

65. The figures provided in Annexure D to Nichols' first affidavit in relation to permanent pondage of the Village Pond and Ponds 1 to 6 and other affidavit evidence enable the Respondents to maintain the argument that as several of the ponds (2, 3 and 4) are intended only for use in holding water in certain storm events, i.e. intermittently, these ponds are not within the meaning of artificial waterbodies in the EP&A Regulation, but rather fall within the exception of a “construction that is only intended to hold water intermittently” and therefore are not artificial waterbodies as defined in the EP&A Regulation. Further, if these ponds are excluded, then Pond 5 ought not logically be aggregated, in the Respondents' submission, because it could not be treated as part of the same system if Ponds 2, 3 and 4 are excluded. As already discussed in (ii), the Respondents' reason for this is that there is a large distance of several hundred metres between Ponds 1 and 5 and the fact that Pond 5 is not within the 40 metre zone.

66. The Applicant argued that the Stage 2 report did suggest that the pond areas (1 to 6) would contain water at all times and were not intermittent. At page 15 of the Stage 2 report reference is made to the three smaller macrophyte beds (Ponds 2, 3 and 4) being set up to maintain an operating depth of 0.5 metres to support a diverse range of macrophytes.

67. My understanding from reading the Stage 2 report is that these ponds will contain some water at all times. This contrasts with the evidence in Nichols' second affidavit which suggests that the flow in these ponds (2, 3 and 4) will be intermittent. I accept Nichols' affidavit evidence (applying Enfield), which the Applicant's witness Dr O'Loughlin does not address that Ponds 2, 3 and 4 do not have areas of permanent pondage. On this basis, Ponds 2, 3 and 4 do come within the exemption, being "constructions intended to hold water intermittently". Accordingly, the surface areas of Ponds 2, 3 and 4 should not be included in any calculation of the maximum aggregate surface area.

68. I am also prepared to accept that Pond 5 should not be included in the calculation of surface area if the ponds 2, 3 and 4 are not within the definition of artificial waterbody. This is because if Ponds 2, 3 and 4 are only intermittent, and are therefore not artificial waterbodies, the essential "link", which the Applicant argued made Ponds 1 and 5 part of the same system, is broken. That is, there is no physical connection between Ponds 1 and 5. Thus, the Village Pond and Ponds 1 and 6 are the only waterbodies that can be described as artificial waterbodies within the definition in the EP&A Regulation. Ponds 2, 3, 4 and 5 cannot be taken into account.

69. In terms of the Applicant's evidence, the Applicant's expert, Dr O’Loughlin, relies on Annexure D to Nichols' first affidavit to state in his second affidavit that the total surface area of waterbodies (during "low flow") partly within 40 metres of a natural waterbody is 5823 square metres. This includes areas of the Village Pond, Ponds 1, 2 and 6 and smaller waterbodies at W, Y and Z within 40 metres of the natural waterbody . It also includes the surface area under the boardwalk of the Village Pond of 209 square metres, which I have already held should not be included. Based on Annexure D, the Applicant submitted, the total area of the waterbodies (the Village Pond, Ponds 1, 2 and 6) wholly or partly within 40 metres of a natural waterbody is 8289 metres. In this calculation the whole surface area of any pond that is situated partly or wholly within the 40 metre line has been included and not just the proportion that lies within 40 metres.

70. Because of my findings in (iii), the surface area of Pond 2 cannot be included. It is also not completely clear on the evidence that the smaller waterbodies at W,Y and Z should be included as these appear likely to be intermittent. I will therefore not include them at this stage as, in any event, this will not alter the overall result set out below that there are artificial waterbodies of 0.5 hectares within 40 metres of a natural waterbody in this case.

Findings on Question 2: Is the original development designated?

71. The existing creek is a natural waterbody. The Village Pond and Ponds 1, 2 and 6 lie within the required 40 metre zone because they are situated partly within 40 metres of a natural waterbody. In appropriate cases a system of interconnected artificial waterbodies, not all of which are within 40 metres of a natural waterbody, can be included in the calculation of “artificial waterbodies … with a maximum aggregated surface area of water of more than 0.5 hectares located … in or within 40 metres of a natural waterbody …”. However, in this case Ponds 2, 3 and 4 do not meet the definition of artificial waterbodies. They have no permanent pondage and properly fall within the exemption of a “construction that is only intended to hold water intermittently”. Therefore, as Ponds 2, 3 and 4 are not artificial waterbodies there cannot be said to be a series of connected artificial waterbodies (i.e. a system) in Ponds 1 to 6. Pond 5 is thereby necessarily excluded and the only Ponds which can be used in the calculation are the Village Pond and Ponds 1 and 6.

72. In order to calculate the “maximum aggregate surface area” one must total the whole surface area (when at full capacity, or the total surface area inundated during "low flow" on the evidence presented) of each of the ponds that are artificial waterbodies partly or wholly within 40 metres of a natural waterbody, in this case, the total of the Village Pond and Ponds 1 and 6. Adding the maximum surface area available on the evidence in Annexure D for the Village Pond (4855 square metres), Pond 1 (2413 square metres) and Pond 6 (646 square metres) a “maximum aggregate surface area” of 0.7914 hectares results. This figure clearly exceeds the threshold of 0.5 hectares in Sch 3. These figures are estimated by Mr Nichols to have an error rate of +/- 1 or 2%. The error rate is therefore not material at this point as the 0.5 hectares threshold is clearly exceeded.

73. If the smaller ponds at W, Y and Z were added this figure would be greater but as it is unclear if these ponds are intermittent (and therefore excluded) and as it does not alter the overall outcome at this stage, I have not included these in my findings.

74. I therefore find that there are artificial waterbodies that have a maximum aggregate surface area of more than the threshold of 0.5 hectares and that these waterbodies are within 40 metres of a natural waterbody.

75. In all the circumstances I therefore find that DA 336 of 2000 should have been dealt with as designated development.

3. If designated development, can DA 336 of 2000 be modified by the First Respondent in February 2002?

76. The parties agreed that the question of whether the development was designated was a question of jurisdictional fact. The Court understands this to mean that it is a threshold question of fact fundamental to the exercise of statutory jurisdiction which can be objectively determined by the Court, rather than a factual determination by the First Respondent which cannot be overturned by the Court if reasonably and lawfully held by it. I agree with this submission given the statutory context in which designated development occurs. In Timbarra Protection Coalition v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 102 LGERA 52, Spigelman CJ stated at 61:

Where the process of statutory construction leads to the conclusion that Parliament intended that a 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.

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, either as a rule of the statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for the present purposes - a Court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision maker (in the Wedensbury sense), but not itself determine the actual existence or non-existence of the relevant facts.

Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: See Craig Administrative Law 3rd ed, 1994, 368 - 370; Minister for Ethnic Affairs v Teo (1995) 57 FCR 194 at 198C. Where such words do not appear, the construction is more difficult.

77. Applying these statements to the EP&A Act context as it applies to designated development the decision is clearly one of jurisdictional fact. Designated development provisions in the EP&A Act are prescriptive in that s 77A defines designated development as being declared under the Regulation. Schedule 3 to the EP&A Regulation defines the development which is designated. If development is designated a number of procedural requirements are detailed in the EP&A Act including the preparation of an EIS and, in s 79, the public exhibition of that EIS to enable submissions by members of the public. If a person objects within the submission period that person has an automatic appeal right under s 98 of the EP&A Act to this Court. Parliament has chosen in the legislation to treat designated development differently to other forms of development in large part because of the potential for environmental impact from such developments. Failure to correctly identify a development as designated has significant consequences in terms of the lack of an EIS, loss of public exhibition and comment period and loss of appeal rights. I view these matters as significant given the objects of the EP&A Act to encourage the proper management, development and conservation of natural resources (s 5(a)(i)), the protection of the environment (s 5(a)(vi)) and the provision of increased opportunity for public involvement and participation in environmental planning and assessment (s 5(c)).

78. The Applicant also referred to case law dealing with the compulsory nature of the obligation to make an application for designated development in compliance with the EP&A Act i.e. the requirement for an EIS to accompany the development application.

79. In Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312 (see Stein J at 316 and Fitzgerald J at 322) the Court of Appeal considered the impact of failing to comply with s 77(3) of the EP&A Act, as it then applied, namely the requirements for making an application for development consent for a designated development. It held that if a development application did not substantially comply with the requirements of s 77, namely that it did not include an EIS that was substantially in compliance with s 77(3)(d) regarding the prescribed form, it was incomplete and ineffective until there was substantial compliance. It is only when that has occurred that a development application is effectively "made". This is not a circumstance where a DA can be retrospectively "cured".

80. The Applicant submitted that Talbot J in Wolgan Action Group Inc v Lithgow City Council (2001) 116 LGERA 378, which dealt with late payment of an application fee under cl 72A of the EP&A Regulation, also confirmed the compulsory nature of requirements under s 77(3)(d) of the EP&A Act as it then applied (in contrast to cl 72B EP&A Regulation which his Honour had to consider in relation to the requirement to notify and advertise a development application).

81. It was further submitted by the Applicant that the language under the amended EP&A Act is more emphatic than the legislation considered in Remath and Wolgan. Section 79 sets out the obligations of the Council which must be undertaken in processing a designated development, particularly in relation to public exhibition and notification of presumed documents. It was submitted these public notification provisions are a fundamental part of the scheme in the EP&A Act as indicated by the objects in s 5(c) "to provide increased opportunity for public involvement and participation in environmental planning and assessment". This was further support for the Applicant's submission that the failure to treat the original development as designated cannot be "cured" later by the Respondents with the modification to the development in February 2002. If there had been no modification of the original development consent appealed against, given my finding that it was designated development, it would be declared invalid. This is clear from the cases referred to by the Applicant.

82. Accordingly what are the legal consequences of the First Respondent's failure to treat DA 336 of 2000 as designated development given that the First Respondent has sought to modify its development consent for DA 336 of 2000?

83. The principal way in which the development consent was modified by the First Respondent was in relation to the stormwater and water management layout. The application for modification under s 96(1A) of the EP&A Act states that the Village Pond is to be altered to become two ponds, Village Pond 1 and Village Pond 2, the former being more than 40 metres from the existing creek and the latter having no permanent pondage, and Pond 6 is to be reduced in size and have no permanent pondage. There is potential for these changes to result in the proposed development falling outside Sch 3 Pt 1.

84. The Applicant submitted that in a situation where a jurisdictional fact had not been correctly determined, the effect on the decision of the administrative decision maker is that the decision is a nullity; Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242, and cannot be further modified as the First Respondent has done. There was also reliance on the Court of Appeal decision in Hawkesbury County Council & Anor v Sammut [2002] NSWCA 18 which held that where the consent was void from the beginning the power to grant development consent could not be based on a retrospective change in legislation. In other words, the power to grant consent "must exist at the time the consent is given". The Court of Appeal in Timbarra was also relied on. That case dealt with the failure to obtain a species impact statement by a council and it was held this was an essential precondition (Craig v South Australia (1995) 184 CLR 163), and therefore a jurisdictional fact the court was obliged to decide for itself. Helman v Byron Shire Council (1995) 87 LGERA 349 was cited approvingly by Spigelman CJ in Timbarra. Helman concerned a failure by the council to make a fauna impact statement available to the public. Applying Stephen J in Scurr v Brisbane City Council (1973) 133 CLR 242 on the importance of public notification, Handley J in Helman concluded that compliance with the statutory requirements is a condition precedent to any consideration of the application by the council (at 358 - 9).

85. None of these cases dealt with the factual situation in this case, namely where a development consent is challenged on the basis of making a jurisdictional error which rendered the decision of no effect and while those proceedings are pending, the Second Respondent applies for a modification relevant to the jurisdictional fact issue, which is granted by the First Respondent before the Court makes a decision on the original challenge.

86. The Applicant also relied on a recent High Court decision Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11. In that case the Immigration Review Tribunal reversed its own decision to dismiss an application for the review of a decision to cancel a student visa. At the time the first decision to dismiss was made by the Tribunal, there had been no appearance by the Respondent. A letter which the Respondent had sent to the Tribunal explaining that he would be absent was not seen by the Tribunal before it dismissed the application, due to an administrative oversight. The Tribunal set a new hearing date at which it reversed its earlier decision revoking the cancellation. The majority of the High Court (Kirby J dissenting) dismissed the appeal by the Minister in five separate judgments upholding the Tribunal's second decision. The Minister had argued that it was a fundamental principle that administrative decisions were valid and binding until set aside by a court and, having made its decision, the Tribunal lacked the power to change it. As its first decision was binding it was not open to the Tribunal to make a second decision as it did. The key issue therefore before the High Court was what is the legal effect of a decision involving jurisdictional error.

87. The Applicant referred to several of the majority judgments in the High Court. In particular the Court was referred to Gleeson CJ who stated that:

the question is whether the statute pursuant to which the decision maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen (at [8]).

88. There was more than a denial of procedural fairness, there was a jurisdictional "error in fact", the non-fulfilment or non-performance of a condition precedent and consequently the Tribunal had failed to perform its functions as it was required to do by the legislation (at [14]). It was therefore open to the Tribunal to make a new decision as this was in accordance with the requirements of the Migration Act 1958 (Cth).

89. Gaudron and Gummow JJ noted in a joint judgment the distinction between void and voidable and stated that:

the tendency to conceptualise erroneous administrative decisions as voidable rather than void may be the result of a need to treat a decision as having at least sufficient effect to ground an "appeal" or other legal proceedings…. [45]

There is….. no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. [51]

90. McHugh J, the Applicant pointed out, agreed with the main arguments of Gummow and Gaudron JJ differing on two matters that are not material.

91. Counsel for the Applicant argued that Bhardwaj changes the law in relation to administrative decisions involving jurisdictional error. Bhardwaj supports the proposition that decisions made on the basis of jurisdictional error do not have continuing validity unless there is very clear language in the legislation suggesting that they should. The Applicant distinguished the line of cases based on Calvin v Carr [1980] AC 574, on which the Respondent relied, as not dealing with jurisdictional fact issues but rather other grounds of judicial review of administrative action.

92. In response, the Respondent argued that the position in the Land and Environment Court was that the invalidity of an administrative decision does not have the effect of preventing action which would change the form of development before the declaration of invalidity by the Court. This proposition was founded in a long line of cases such as Smith v East Elloe Rural District Council [1956] AC 73. Smith v East Elloe was followed by Calvin v Carr [1980] AC 574 where the House of Lords held that:

a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court it may have some effect, or existence in law… (at 589 - 90).

93. In that case it was held:

the decision had consequences which remained in effect until the steward's decision was challenged and had sufficient existence in law to justify an appeal (at 590).

94. F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGERA 306 was also relied on to suggest that decisions which were later declared invalid continued to exist and were not extinguished until declared so. This was followed by Talbot J in Swadling v Sutherland Shire Council (1994) 82 LGERA 431, where his Honour held that there was capacity in the local council to modify a development consent under s 102 of the EP&A Act whilst an appeal is pending under s 97 of that Act. Smith v East Elloe was quoted with approval to the effect that a development consent must be treated as valid until it is declared invalid by a court of competent jurisdiction. All these cases did not deal with an invalid decision based on a failure to find that a relevant jurisdictional fact existed.

95. Lloyd J in MLC Properties v Camden Council (1997) 96 LGERA 52 was also referred to in support of this approach as there is obiter reference to Swadling, Smith v East Elloe and Hannan in his Honour's judgment. In obiter remarks, Lloyd J concludes that "until a consent…..is found to be void, a consent authority may modify the consent under s 102 of the [EP&A Act.]" That case concerned the revocation of a condition which required a bank guarantee for s 94 contributions pending adoption of a contributions plan. The Respondents stated this condition was void for jurisdictional reasons. The Applicant distinguished the case on the basis that it dealt only with a condition, rather than the basis for a consent.

96. The full Federal Court in Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649 was also cited by the Respondent as adopting the approach in Aronson and Dyer's Judicial Review of Administrative Action, 2nd edition, which view supported the Respondent's case.

97. The Respondent argued that if it was the intention of the High Court in Bhardwaj to change such a major element of administrative law, the ratio does not suggest that this was the court's intention. The Respondent submitted that Bhardwaj is not authority for the proposition that in any case where the decision made is without jurisdictional foundation it is invalid from the moment of its making for all purposes. In the judgment of Gleeson CJ it is made clear that he is dealing with a failure to discharge particular statutory functions. A key issue is the legislative context in which a statutory provision occurs. Similarly, in the majority judgment it was also not decided that in every case of this nature an administrative decision is null and void. The decision in Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 was noted with approval by Gleeson CJ. In that case it was stated "an invalid administrative decision can have operational effect." Similarly the judgment of Hayne J does not contain any general proposition which disagrees with the Calvin v Carr line.

98. The Respondent argued that essentially Bhardwaj should be limited to its facts and the peculiar statutory provisions with which it was dealing in relation to the Migration Act 1958 (Cth) and its privative clause. It is noted that Hayne J approved discussion in HWR Wade "Unlawful Administrative Action: Void or Voidable? Part I," (1967) 83 Law Quarterly Review 499, who makes similar pronouncements to Aronson and Dyer on the nature of invalidity of administrative decisions.

99. I agree that Bhardwaj deals with a particular statutory context but do not consider its application is confined only to its facts. As there is unanimity on the result of the majority of the High Court but not complete unanimity in the reasoning which arrives at that result the extent of its application is open to debate. Gleeson CJ's judgment does focus on the statutory scheme under the Migration Act. Other majority judges Gummow and Gaudron JJ (with McHugh J) do clearly make observations which can be interpreted as more far-reaching. Indeed the judgment extract relied on by the Applicant (at par 89 above) is set out under the heading "Decision involving jurisdictional error: the general law". While also referring to the statutory scheme before them it seems to me their reasoning can be applied in analogous circumstances where there is jurisdictional error in a statutory context which renders a decision based on such error to be of no effect. According to the majority, such decisions are only effective if the statutory context makes clear that such flawed decisions can be treated as effective. Otherwise the flawed decision has no legal foundation and can be of no effect.

100. The observations of Hayne J are also instructive in that he bases his view that the second decision is valid on the failure of the Tribunal to perform the duty imposed on it by the statutory regime in relation to the first decision, so that the first decision was not a performance of its duty under the Act. His reasoning on the nature of the statutory duty of an administrative decision-maker is relevant in relation to the current case. I do not see his reasoning on this point as inconsistent with that of Gaudron and Gummow JJ. In respect of this part of his decision, other judges in the majority made comments to similar effect (see Gleeson CJ at [15] and Gummow and Gaudron JJ (McHugh J agreeing) at [53]).

101. Hayne J's reasoning can be seen as different to that of Gummow and Gaudron JJ in other respects in that he specifically adopts the view of Wade that an administrative decision should not safely be treated as void unless a court finds it so. In contrast, Gaudron and Gummow JJ state that a decision can be considered as of no legal effect from the outset. The approach adopted by Hayne J in this respect is arguably directed at the more likely practical context for those challenging administrative decisions. If this is inconsistent with the reasons of Gummow and Gaudron JJ (with McHugh J) I adopt their view. As I noted in the previous paragraph however there are similarities on key points between all the majority judges.

102. The Calvin v Carr line of cases dealt with decisions rendered invalid by later court challenges for failure to apply procedural fairness and other judicial review grounds. In that sense they are different to the situation in Bhardwaj where the obligation to afford procedural fairness was found by the majority of the High Court to be an essential precondition to the Tribunal exercising its powers under the Migration Act (Cth). I do not see the two lines of authority relied on by the parties as necessarily inconsistent and do not understand Bhardwaj to be overruling the Calvin v Carr line of cases. Indeed there are several references to Calvin v Carr in the majority judgments which do not suggest any intention to overrule that decision.

103. In the circumstances of this case, there is a challenge in this Court to a decision of the First Respondent based on a fundamental error in relation to a jurisdictional fact. There is no explicit provision dealing with the legal effect of decisions made under the EP&A Act based on jurisdictional error. Section 123 provides that any person may apply to remedy or restrain breaches of the Act in this Court. The Court has wide powers to consider matters under s 123 of the EP&A Act. As I have found above, the question of whether a development is designated is a jurisdictional fact essential to the exercise of statutory jurisdiction. Other decisions of this Court such as Remath and Helman emphasise the mandatory nature of the EP&A Act requirements which apply to such development.

104. The issue of whether a development is designated under the EP&A Act is clearly a jurisdictional fact issue and consequently an erroneous decision based on it is fundamentally flawed so that the decision-maker lacks the relevant statutory jurisdiction to make the decision. Such a decision is a failure to carry out a statutory function, as the majority found in Bhardwaj.

105. Bhardwaj did not deal, as this case does, with what is the effect of modifying an administrative decision while it is under challenge, in the circumstances where the Court has now found the first decision is invalid because of jurisdictional error. The application for modification was to the invalid consent for DA 336 of 2000 rather than an application for a new development consent. I consider the argument can be made strongly in this case that it is not open to the First Respondent to modify its first decision to grant development consent as that was based on jurisdictional error as a result of which no decision was made. In other words, there was no relevant decision to amend.

106. The situation in this case can be contrasted with a council making a decision about the modified development based on a new application, with the processing of that new application taking place in accordance with the procedures under the EP&A Act. As that would not require reliance on the previous decision there is nothing in law to prevent it. The modification of an existing development consent which is based on a jurisdictional error is of a quite different legal character.

107. In the statutory context of the EP&A Act concerning designated development there was a failure to perform an essential statutory function at the time the first decision was made. There was, accordingly, as the statutory function had not been performed by making the original development consent, no development consent to modify when the First Respondent purported to modify the development consent to DA 336 of 2000 in February 2002. In my opinion, the modified development consent is therefore also invalid.

4. If the first development consent can be modified is the modified development designated? .

108. I do not need to decide if the modified development is designated in light of my finding that the first decision is invalid and of no effect and cannot therefore be modified.

109. However, as this issue was also argued by the parties I will set out my conclusion on this matter by applying the tests set out in question 2 above. The relevant documents for the modified consent are Annexure D and Annexure E to Nichol’s third affidavit – the drawing of the modified pond system and the calculations of the modified surface areas respectively.

110. The principal way in which the development consent was modified was in relation to the stormwater and water management layout. The application for modification states that the Village Pond is to be altered to become two ponds (Village Pond 1 and Village Pond 2). Village Pond 2 is also now intended to be intermittent (i.e. it has no permanent pondage). The furthest downstream pond in the proposed Hazelton Creek wetland system (Pond 6) is to be reduced in size and have no permanent pondage and does not lie in the 40 metre zone.

111. As I have already found, the existing creek is a natural waterbody. In the modified development only Village Pond 2 and Ponds 1 and 2 fall within the 40 metre zone (as well as the smaller ponds at points Y, W and Z). As the Village Pond 2 and Ponds 2, 3, 4 and 6 have no permanent pondage they fall within the exemption of a “construction that is only intended to hold water intermittently”. Only ponds that can meet the definition of an artificial waterbody and that lie partly or wholly within 40 metres of a natural waterbody or are connected as part of a system to such ponds can be included in the calculation of maximum aggregate surface area. On this basis Pond 1 is the only pond that can be included in the calculation. Pond 5 and Village Pond 1 are excluded as they lie completely outside the 40 metre zone and have no connection with a system of artificial waterbodies which meet the Sch 3 definition and are within the 40 metre zone.

112. Relying on annexure E to Nichol’s third affidavit the total surface area of Pond 1 shown in the first column relating to ‘low flow’ is 2413 square metres. Assuming this is close to Pond 1’s full capacity, this clearly does not meet the 0.5 hectare threshold.

113. I also note that there continue to be, on Dr O’Loughlin’s evidence, relevant ponds at points Y, W and Z. It is unclear from the evidence whether these Ponds are intermittent only, so that they would not fall within the definition of an artificial waterbody, or whether they have some permanent pondage. Annexure D to Nichols’ first affidavit suggests that these are intermittent. The calculations provided in Dr O’Loughlin’s second affidavit suggests that the surface areas at low flow for point Y is 108 square metres, for Point W is 194 square metres and Point Z is 67 square metres. In any event, when added with the surface area of Pond 1, the threshold of 0.5 hectares is not met, even if these ponds can be included.

114. On the evidence provided to the Court it does not appear that the modified application would have constituted designated development.

Costs

115. I reserve my decision on costs in case the parties wish to make submissions on that matter.

Orders

116. Accordingly, the Court:

1. Declares that development consent issued by Shellharbour City Council on 21 June 2001 to Development Application 336/2000 in respect of Lot 1 DP570091, Part Lot 2 DP592437 and Lots 55 & 56 DP739857 for the purpose of Torrens Title subdivision including roads, stormwater management, creek rehabilitation, public open spaces, primary school site, a village centre and residential lots (the "development consent") and the development consent as modified by Council on 26 February 2002 ("the modified development consent") are invalid.

2. Declares that the Second Respondent has not made an application for development consent for the said development within the meaning of s 78A of the EP&A Act and the First Respondent had no power to grant the development consent or the modified development consent.

3. Orders that the Second Respondent is restrained from carrying out or authorising carrying out of development pursuant to the development consent, or the modified development consent.

4. Declares the question of costs is reserved.

5. Orders the exhibits be returned.