Lester v NSW Minister for Planning and Ashton Coal Operations Pty Ltd

Case •

[2013] NSWCA 45

•

06 March 2013

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Lester v NSW Minister for Planning and Ashton Coal Operations Pty Ltd [2013] NSWCA 45
Hearing dates:20 February 2013
Decision date: 06 March 2013
Before: Tobias AJA at [1];
Young AJA at [2];
Preston CJ of LEC at [3].
Decision:

1. Appeal dismissed.

2. The appellant to pay the costs of the first and second respondents of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: JUDICIAL REVIEW - modification of approval of a project - statutory requirement to make publicly available request for modification of approval - parts of documents accompanying request for modification not able to be viewed on department website - whether accompanying documents comprise request for modification - whether making only parts of documents publicly available sufficient compliance - whether giving message that further information may be requested makes missing documents publicly available - whether purpose of legislation that non-compliance with statutory requirement invalidates modification of approval - appeal dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Cases Cited: Amaya v Everest Property Holdings Pty Ltd [2010] NSWCA 315; 15 BPR 28,695
Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148
Category:Principal judgment
Parties: Robert Lester (Appellant)
Minister for Planning and Infrastructure (formerly NSW Minister for Planning) (First Respondent)
Ashton Coal Operations Pty Ltd (Second Respondent)
Representation: Counsel:
Mr M C Fraser and Mr N M Eastman (Barristers) (Appellant)
Ms A M Mitchelmore and Ms V M Bosnjak (Barristers) (First Respondent)
Mr R P L Lancaster SC with Mr S J Free (Second Respondent)
Solicitors:
Indigenous Justice Advocacy Network (Agent) (Appellant)
Legal Services Branch, Department of Planning and Infrastructure (First Respondent)
McCullough Robertson (Second Respondent)
File Number(s):67386 of 2012
 Decision under appeal 
Citation:
[2011] NSWLEC 213
Date of Decision:
2011-11-30 00:00:00
Before:
Moore AJ
File Number(s):
40840 of 2011

Judgment

  1. TOBIAS AJA: I agree with Preston CJ of LEC.

  1. YOUNG AJA: I agree with Preston CJ of LEC.

  1. PRESTON CJ OF LEC:

Nature of appeal and conclusion

Mr Lester appeals against the decision of Moore AJ of the Land and Environment Court of NSW dismissing his application for judicial review of the Minister for Planning's modification of an approval for a coal mining project in the Upper Hunter Valley. Mr Lester has limited his appeal to the primary judge's rejection of his ground of challenge based on an alleged failure of the Director-General of the Department of Planning to make publicly available the appendices to an environmental assessment submitted by the proponent with the request to the Minister for modification of the approval.

  1. I consider the primary judge was correct in rejecting Mr Lester's challenge to the Minister's modification of the approval on this ground, although for reasons that differ from those of the primary judge. The appeal should therefore be dismissed with costs.

The Minister's modification of the approval

  1. Ashton Coal Operations Pty Ltd ('Ashton') carries out a coal mining project at Camberwell in the Upper Hunter Valley under a development consent granted by the Minister for Planning in 2002. Although the development consent was granted originally under Part 4 of the Environmental Planning and Assessment Act 1979 ('the Act'), it has been declared to be State significant development under the Act and, by operation of cl 8J(8) of the Environmental Planning and Assessment Regulation 2000 ('the Regulation'), it was taken to be an approval under Part 3A of the Act for the purposes of any modification of the approval. I will refer to the 2002 development consent as 'the approval'.

  1. On 28 February 2011, Ashton requested the Minister to modify the approval. This was the seventh request for modification and hence has become known as the Modification 7 request.

  1. The Department made available a standard form to be completed by a proponent requesting the Minister to modify an approval for a project. Ashton completed the standard form by inserting information in the pre-set information fields, including the details of the proponent, identification of the land, details of the original approval, description of the modification proposed, and the proponent's signature. The modification requested by Ashton involved excavation of a small area to access an additional 100,000 tonnes of coal from the Hebden coal seam; construction and operation of 15 gas venting surface wells along four of the longwall panels of its underground mine to provide safe working conditions; and an amendment of a particular condition, Condition 3.14 of Sch 2, relating to first workings.

  1. Ashton lodged the completed Modification 7 request form with the Director-General on 28 February 2011. The request form was accompanied by a report called "Ashton Coal Project Environmental Assessment for the Modification of DA 309-11-201-i (Mod 7)". The environmental assessment comprised commentary in the body of the report and eight appendices to the report. Appendices 1 to 4 dealt with the modification for gas drainage and appendices 5 to 8 dealt with the extraction of additional coal from the Hebden coal seam.

  1. The environmental assessment accompanying the Modification 7 request was not required by the Director-General under s 75W(3) of the Act. Under that provision, the Director-General may notify a proponent, who lodges a request for the Minister's approval of a modification, of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister. However, in this case, the Director-General did not notify Ashton of any environmental assessment requirements with respect to the Modification 7 request.

  1. On a date not specified, the Department of Planning posted the completed Modification 7 request form - ie the pre-printed form in standard terms with information inserted by Ashton in the information fields - on the Department's website. The Department also made the environmental assessment available for viewing on its website. Separate links were provided on the website to appendices 1 to 4 and to appendices 5 to 8. However, if a person accessing the Department's website clicked on the link to appendices 1 to 4, the person was provided electronic access to appendices 5 to 8, instead of appendices 1 to 4. The link to appendices 5 to 8 did provide electronic access to appendices 5 to 8.

  1. On the same page of the Department's website on which the links to the appendices to the environmental assessment were located was a printed message stating: "For further information, please contact the planner, Nicholas Hall, via email at [email protected]".

  1. On 15 June 2011, the Minister, by his delegate the Planning Assessment Commission, modified the approval with conditions.

The ground of challenge and the primary judge's rejection of it

  1. Mr Lester's argument that the Minister's modification of the approval was invalid on the ground of failure to comply with s 75X(2)(f) of the Act proceeded as follows:

(a) under s 75X(2)(f), the Director-General was required to make publicly available "requests for modifications of approvals given by the Minister ... ";

(b)   the expression "requests for modifications of approvals" comprehends documents accompanying a request for modification;

(c)   Ashton's Modification 7 request included not only the completed request form but also the environmental assessment (with its appendices) that accompanied that request form;

(d) documents are made publicly available for the purposes of s 75X(2) by posting the documents on the Department's website (cl 8G(2) and (3) of the Regulation) or by providing an electronic link to the documents on another website (cl 8G(5) of the Regulation);

(e)   all of the documents comprising the Modification 7 request were not made publicly available because the link on the Department's website to appendices 1 to 4 of the environmental assessment did not in fact provide electronic access to those appendices;

(f)   the requirement to make publicly available appendices 1 to 4 was not achieved by identifying on the Department's website the name and email address of a person who could provide further information;

(g) as a consequence, there was a failure to comply with the requirement in s 75X(2) of the Act; and

(h) the legislature intended that a failure to comply with the requirements in s 75X(2) should result in invalidity of the subsequent modification of the approval by the Minister under s 75W(4).

  1. The primary judge:

(a) assumed but did not decide that "requests for modifications of approvals" in s 75X(2)(f) of the Act could comprehend documents accompanying the request and that the request in this case included the environmental assessment accompanying the request (at [46] and [47] of the judgment);

(b)   was inclined to think that the environmental assessment accompanying the request in this case was constituted by the commentary in the body of the environmental assessment and not any of the appendices (at [49]-[50] of the judgment);

(c)   found that even if the environmental assessment included also the appendices, the inference should be drawn that all documents (including the missing appendices) would have been provided had any interested member of the public contacted the planner identified on the Department's website at the stated email address and asked for the missing appendices and hence, on the facts, the documents were made publicly available (at [53] of the judgment); and

(d) held there was no failure to comply with s 75X(2)(f) (at [53]-[54] of the judgment).

The argument on appeal and the respondents' rebuttal

  1. On appeal, Mr Lester did not contest the primary judge's assumption as to the documents comprising the request for modification. However, Ashton, by notice of contention, contended that documents accompanying a request for modification under s 75W(2) and (3), including the environmental assessment in this case, are not comprehended within the phrase "requests for modification of approvals given by the Minister" in s 75X(2)(f) (at [48]-[53] of Ashton's submissions).

  1. Mr Lester contended the primary judge erred in concluding that the appendices were not part of the environmental assessment. To the contrary, Mr Lester contended that the appendices to the environmental assessment enabled assessment of the project by the Minister and formed part of the environmental assessment (at [32]-[38] of the appellant's submissions).

  1. The Minister supported the primary judge's conclusion that the appendices did not form part of the environmental assessment (at [34] of the Minister's submissions). However, the Minister contended that any error in the primary judge's splitting up of the environmental assessment and the appendices to an environmental assessment would not lead to a different result on the appeal having regard to the primary judge's finding that all documents, including all of the appendices, were publicly available and, furthermore, the absence of a legislative intention to invalidate a determination of a modification of a project approval where the Director-General has not fully complied with the requirements in s 75X(2)(f) (at [35] of the Minister's submissions).

  1. Mr Lester contended the primary judge erred in concluding that the identified availability on the Department's website of a person and his email address from whom further information could be requested could fulfil the requirement for the public availability of a document (at [22]-[27] of the appellant's submissions) and also in inferring that a member of the public would have been provided with the appendices if they had contacted the officer (at [28]-[31] of the appellant's submissions).

  1. The Minister and Ashton supported the primary judge's findings that, as a matter of fact, all documents, including the appendices were publicly available. The Minister and Ashton further submitted that, even if there was non-compliance with s 75X(2)(b) by appendices 1 to 4 not being publicly available, the legislature did not intend such a non-compliance to invalidate a modification of an approval under s 75W(4) (at [18], [21]-[32] of the Minister's submissions and at [54]-[63] of Ashton's submissions).

  1. I will commence by setting out the relevant statutory provisions regulating requesting and granting modifications of approvals, making publicly available certain documents, and making regulations. These provisions provide the legal framework for determining the grounds of appeal and contention. I will then deal with the grounds of appeal and contention in the following order: whether the environmental assessment (including its appendices) accompanying the request for modification is a request for modification of approval within s 75X(2)(f) that was required to be made publicly available; whether the environmental assessment included the appendices; whether the appendices were made publicly available by identifying on the website a person from whom further information could be obtained; and whether, if there were to be non-compliance with s 75X(2)(f), that results in invalidity of the Minister's modification of the approval.

The relevant statutory provisions

  1. Section 75W of the Act provided for the process of requesting the Minister to modify an approval and the Minister modifying an approval. Section 75W provided, so far as is relevant:

(1) In this section:
Minister's approval means an approval to carry out a project under this Part, and includes an approval of a concept plan.
modification of approval means changing the terms of a Minister's approval, including:
(a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and
(b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval.
(2)The proponent may request the Minister to modify the Minister's approval for a project. The Minister's approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part.
(3)The request for the Minister's approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.
(4)The Minister may modify the approval (with or without conditions) or disapprove of the modification.

  1. Section 75X(2) provided for the making of certain documents publicly available:

(2)The following documents under this Part in relation to a project are to be made publicly available by the Director-General:
(a) applications to carry out projects,
(b) environmental assessment requirements for a project determined by the Director-General or the Minister,
(c) environmental assessment reports of the Director-General to the Minister,
(d) approvals to carry out projects given by the Minister,
(e) applications for the Minister's approval of concept plans (and approvals of concept plans),
(f) requests for modifications of approvals given by the Minister and any modifications made by the Minister.

  1. Section 75X(5) specified the requirement of Part 3A that is mandatory in connection with the validity of an approval of a project or of a concept plan. It provided:

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

  1. Section 75Z enabled the making of regulations for or with respect to the approval of projects and concept plans for projects and to approved projects and concept plans. It provided:

The regulations may make provision for or with respect to the approval of projects (and concept plans for projects) under this Part and to approved projects (and concept plans), including:
...
(c) providing for public exhibition, notification and public registers of applications for approvals under this Part (or for the modification of approvals) and of the determination of those applications,
...

  1. One regulation made was in cl 8G of the Regulation which provided:

Public information about documents relating to projects
(1) This clause applies to the duty of the Director-General under section 75X (2) of the Act to make specified documents relating to a project publicly available.
(2) The documents are to be made available on the Department's website and in such other locations as the Director-General determines.
(3) The documents are to be posted on the Department's website and in those other locations within 14 days of:
(a) in the case of a document that is an application, request or submission-the date on which the application, request or submission is made, or
(b) in the case of a document that is a determination of environmental assessment requirements, a report or an approval-the date on which the determination, report or approval is made or given.
(4) In addition to the documents referred to in section 75X (2) of the Act, the Director-General is to include on the Department's website and in such other locations as the Director-General determines the following documents:
(a) the declaration of development as a project to which Part 3A of the Act applies or its declaration as a critical infrastructure project,
(b) guidelines published under section 75F or 75H of the Act,
(c) any environmental assessment in relation to a project that has been placed on public exhibition under section 75H of the Act,
(d) responses to submissions, preferred project reports and other material in relation to a project provided to the Director-General by the proponent after the end of the public consultation period (whether under section 75H (6) of the Act or otherwise),
(e) reports of panels under section 75G of the Act (as in force before its repeal) or of reviews by the Planning Assessment Commission,
(f) any reasons given to the proponent by the Minister as referred to in section 75X (3) of the Act.
(5) A document may be made available on the Department's website by providing an electronic link to the document on another website.

Documents comprising request for modification of approval

  1. The primary judge assumed in Mr Lester's favour, but did not express a concluded view, that documents accompanying a request for modification, such as the environmental assessment in this case, could fall within the expression "requests for modifications of approvals" in s 75X(2)(f). Ashton contended that that assumption was incorrect and there was no requirement under s 75X(2)(f) to make publicly available the environmental assessment (including its appendices). Hence, any lack of access to appendices 1 to 4 on the Department's website cannot result in non-compliance with s 75X(2) or invalidity of the Minister's modification of the approval under s 75W(4).

  1. I agree with Ashton's contention. The expression "requests for modifications of approvals" in s 75X(2)(f) must be interpreted not only in its own terms but also in the context of s 75X(2), the process of requesting and approving modifications of approvals in s 75W, and more generally the legislative scheme in Part 3A for making applications, undertaking environmental assessment, considering applications and environmental assessments and approving applications. The text and context establishes that the expression "requests for modifications of approvals" refers only to the request under s 75W(2) lodged with the Director-General under s 75W(3) and not any documents that might accompany such a request.

  1. First, the legislature has been specific in both the description and the selection of the categories of documents that the Director-General is required to make publicly available. In terms of description, s 75X(2) expressly refers only to "requests for modifications of approvals" (para (f)), and similarly, "applications to carry out projects" (para (a)) and "applications for the Minister's approval of concept plans" (para (e)), and does not expressly specify that any documents that accompany requests for modifications of approvals, or similarly, applications to carry out projects or applications for the Minister's approval of concept plans, are to be made publicly available.

  1. In terms of selection, s 75X(2) specifies that only "the following documents under this Part in relation to a project" are to be made publicly available. The documents specified are some but not all of the documents under Part 3A in relation to a project. A notable omission from the specified categories of documents is any environmental assessment required under Part 3A for approval to carry out the project (s 75F and s 75H) or approval for a concept plan for a project (s 75F and s 75H applied by s 75N), or for modification of the Minister's approval for project (s 75W(3)). Such environmental assessments are submitted to the Director-General after an application for approval to carry out a project or of a concept plan or a request for modification of an approval has been lodged with the Director-General and in response to the notification by the Director-General of the environmental assessment requirements with respect to the project, concept plan or modification.

  1. Hence, environmental assessments submitted in response to notified environmental assessment requirements are distinct from applications for approval to carry out a project or of a concept plan and requests for modification of approvals. Section 75X(2) specified these applications and requests (paras (a), (e) and (f)) but not the environmental assessments. This must be seen as a deliberate decision of the legislature. It evinces a legislative intention that the categories of documents specified as "applications to carry out projects" (para (a)), "applications for the Minister's approval of concept plans" (para (e)), and "requests for modifications of approvals given by the Minister" (para (f)), do not include any environmental assessments submitted for such approvals or modifications.

  1. Another omission of relevance to requests for modifications of approvals is any environmental assessment requirements with respect to the proposed modification notified by the Director-General under s 75W(3). Section 75X(2)(b) specifies as a category of documents that must be made publicly available, "environmental assessment requirements for a project determined by the Director-General or the Minister". This category refers to environmental assessment requirements determined by the Minister or Director-General under s 75F for a project (or for a concept plan for a project), but does not extend to environmental assessment requirements determined by the Director-General under s 75W(3) with respect to a proposed modification (which is different to the project or concept plan for a project). This careful description and selection of environmental assessment requirements to be made publicly available also supports a conclusion that the legislature has been similarly careful and particular in its description and selection of the categories of documents in s 75X(2)(f) of "requests for modifications of approvals".

  1. This conclusion that the categories of documents in s 75X(2) are to be construed as including only documents described and not other documents accompanying such documents is corroborated by cl 8G(4) of the Regulation. Under s 75Z of the Act, regulations may be made "providing for public exhibition, notification and public registers of applications for approvals under this Part [Part 3A] (or for the modification of approvals) and of the determination of those applications". Clause 8G of the Regulation is stated to apply to the duty of the Director-General under s 75X(2) to make specified documents relating to a project publicly available (cl 8G(1)). Clause 8G(4) of the Regulation provides that, in addition to the documents referred to in Section 75X(2) of the Act, the Director General is to include on the Department's website certain other documents, including "any environmental assessment in relation to a project that has been placed on public exhibition under s 75H of the Act" (para (c)). This would include an environmental assessment submitted for approval to carry out a project (s 75H) or for approval for a concept plan for a project (s 75N applying s 75H) but not an environmental assessment submitted for the proposed modification of an approval (s 75W(3)) as there is no requirement for an environmental assessment for a proposed modification to be placed on public exhibition under s 75H of the Act.

  1. The specification of certain environmental assessments in cl 8G(4)(c) as documents to be made publicly available in addition to the documents referred to in s 75X(2) supports the conclusion that the environmental assessment inferentially contemplated by s 75W(3) is not comprehended in the categories of documents specified in s 75X(2) of the Act.

  1. If the categories of documents comprising applications for approval in s 75X(2)(a) and (e) and requests for modifications of approvals in (f) do not include environmental assessments required to be submitted under Part 3A, there is no justification to construe those categories as including an environmental assessment that was not required under Part 3A but happened to accompany such an application or request as a matter of choice on the part of the applicant.

  1. Accordingly, the category of documents specified in s 75X(2)(f) does not expressly or by necessary implication include any documents that might accompany a request for modification of approval under s 75W(2).

  1. Second, on the facts of this case, the environmental assessment was not a request for modification of the approval. The request form completed by Ashton and lodged with the Director-General did not refer, expressly or by implication, to the environmental assessment. In terms, therefore, the request did not incorporate the environmental assessment. Rather, the request lodged was accompanied by the environmental assessment. A document that accompanies another document is not considered to be part of that other document: Amaya v Everest Property Holdings Pty Ltd [2010] NSWCA 315; 15 BPR 28,695 at [72]. Hence, the fact that the environmental assessment accompanied the request for modification did not make it part of that request.

  1. In summary, the environmental assessment which accompanied the request lodged with the Director-General on 28 February 2011 did not fall within the category of documents in s 75X(2)(f) of "requests for modifications of approvals". Consequently, the Director-General was not required under s 75X(2) to make the environmental assessment publicly available. The fact that the Director-General endeavoured to do so, but was not successful in relation to appendices 1-4, cannot have the legal consequence of causing a non-compliance with s 75X(2) or invalidating the Minister's subsequent modification under s 75W(4).

  1. This conclusion is dispositive of Mr Lester's challenge to the modification and of the appeal. Both must fail. Nevertheless, as the matters have been argued, I will consider the other grounds of appeal and contention.

Environment assessment included appendices

  1. The primary judge concluded that, at least in the context of a document constituting an environmental assessment accompanying a request for the modification of an approval, only the commentary in the body of the environmental assessment, and not the appendices, constitutes the environmental assessment provided in support of the request (at [49] and [50] of the judgment).

  1. The primary judge's reason was that "the commentary would have been intended to be a coherent and complete account of the environmental assessment without the appendices. It really is that commentary, and not the appendices, which would promote public discussion and debate bringing about the public involvement and participation contemplated by s 5(c) [of the Act]" (at [50] of the judgment).

  1. Mr Lester submitted the primary judge's conclusion was wrong. If an environmental assessment accompanying a request for modification is caught by the expression "requests for modifications of approvals", the appendices to the environmental assessment are also caught (at [32] of the appellant's submissions). Mr Lester submitted that:

The applicant would not include appendices that serve no purpose ... A proponent for a project chooses to put such material forward not just accompanying but as an appendix to the EA to enable assessment of the project by the consent authority, and consequently it forms part of the environmental assessment.

(at [34] of the appellant's submissions).

  1. Mr Lester further submitted that the primary judge's reason, that the commentary, and not the appendices, provides the coherent and complete account and promotes public discussion and debate, was contrary to the authority and reasoning in Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 at [170], [171]. There is no justification for categorising one document as principal and others as secondary or ancillary. The object identified in s 5(c) of the Act of enhancement of public involvement and participation cannot be achieved if documents relevant to better informing the public are withheld (whether intentionally or unintentionally). Indeed, crucial details and facts can often be found in an appendix and may give reason to challenge the commentary in the body of the environmental assessment (at [36] of the appellant's submissions).

  1. The Minister submitted that the primary judge's conclusion was confined to the facts of this case and was not in error (at [34] of the Minister's submissions). Ashton supported the primary judge's finding as factually open to the primary judge.

  1. I consider the primary judge erred in splitting the environmental assessment from the appendices to that environmental assessment. Both as a matter of general principle and in the particular context of this environmental assessment, an environmental assessment which includes appendices comprises the whole of the document. There is no justification for splitting the environmental assessment into parts, whether on the basis of commentary in the body of the report compared to appendices or otherwise, for the purpose of making publicly available one or more parts but withholding from the public domain one or more other parts. Nothing in s 75X(2)(f), s 5(c), or any other provision of Part 3A of the Act would justify such categorisation and splitting of the document for the purpose of making some parts, but withholding other parts from being, publicly available.

  1. Nothing in the form or terms of the environmental assessment in this case would justify such an approach. Indeed, the commentary in the body of the environmental assessment repeatedly refers to the reports and information in the appendices and describes such reports and information as being "included" in the environmental assessment (see for example, the references in the environmental assessment's discussion of the underground mine interim gas drainage, to the noise report included in Appendix 1 (in s 5.1.1), the air quality report included in Appendix 2 (in s 5.1.2), the Aboriginal heritage report included in Appendix 3 (in s 5.1.3) and the terrestrial ecology report included in Appendix 4 (in s 5.1.4).

Appendices were not made publicly available

  1. The primary judge found that all of the environmental assessment, including all of the appendices, was made publicly available by the identification on the Department's website of a person and his email address from whom further information could be requested. The primary judge inferred that had an interested member of the public contacted the person named and asked for the missing appendices, they would have been provided (at [53] of the judgment).

  1. Mr Lester submitted that the primary judge erred in, first, construing the requirements in s 75X(2) that documents "are to be made publicly available" as being able to be satisfied by the provision of an email address of a person from whom further information can be requested (at [24]-[27] of the appellant's submissions) and, secondly, drawing the inference that a member of the public would have been provided with the missing appendices if they had contacted that person (at [29]-[30] of the appellant's submissions).

  1. The Minister submitted it was open in the circumstances for the primary judge to find that the environmental assessment and all of the appendices were made publicly available (at [18] of the Minister's submissions). Ashton also supported the primary judge's finding as open on the evidence (at [32], [39] and [42] of Ashton's submissions).

  1. I consider the primary judge also erred in finding that appendices 1 to 4 were made publicly available. The requirement in s 75X(2) that documents "are to be made publicly available" requires that state of affairs (the public availability of the document) to exist presently, and it is not sufficient to establish a means by which that state of affairs could exist in the future. If the means by which a document is to be made publicly available is by posting the document on the Department's website, the document must be available for viewing by a member of the public on that website when the person accesses the website. If a document is not able to be viewed on the Department's website when so accessed, it is not "made publicly available" by identifying action a member of the public might take in order to be able to view the document in the future. That action, if taken, might make the document available in the future, but it does not alter the fact that the document was not publicly available at the time of accessing the Department's website.

  1. Furthermore, the making available of a document only to, and on request of, an individual member of the public is not making the document "publicly available", that is to the public at large. The primary judge erred in finding otherwise.

  1. There is a further difficulty in this case in that the message on the Department's website did not in terms identify the action a member of the public might take to be able to view the missing appendices. The statement merely said "For further information, please contact the planner ...". This does not clearly state that contacting the planner will make the documents publicly available. It is not to the point that the primary judge was prepared to infer that had a member of the public contacted the planner, he would have made the missing appendices available to that person. The point is an anterior one - the message in its terms did not state that documents referred to on the Department's website would be made available.

  1. Hence, the inclusion of that message that further information could be obtained by contacting the planner did not make the documents referred to on the Department's website publicly available. The primary judge erred in finding otherwise.

Any non-compliance does not invalidate modification

  1. For the reasons given earlier, there was no statutory requirement to make publicly available the environmental assessment (including the appendices). Hence, any failure to make appendices 1 to 4 of the environmental assessment publicly available is not a breach of s 75X(2)(f) of the Act. The issue of whether, had there been a breach of s 75X(2)(f), it would result in invalidity of the modification does not arise. Nevertheless, had there been a breach of s 75X(2)(f), I do not consider the legislature intended that a breach of that requirement should result in invalidity of the Minister's modification (applying the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]). I would uphold Ashton's notice of contention and the Minister's submission in this regard.

  1. The fundamental reason why I consider the legislature did not intend that a failure to comply with the requirement in s 75X(2)(f) should invalidate a modification of the approval is that the statutory scheme for modification of an approval does not make compliance with the requirement a condition regulating the exercise of the power under s 75W(4) to modify an approval. In other words, exercise of the power under s 75W(4) to modify an approval on request by a proponent is not expressly or inferentially made conditional upon the request for modification being made publicly available. Exercise of the power under s 75W(3) is also not made conditional upon the happening of some other event or thing which in turn is dependent on the request for modification being made publicly available. The statutory scheme for modifications of approval does not require: public consultation, by making a request for modification publicly available during a consultation period and inviting public submissions concerning the proposed modification during that period; consideration of public submissions made during the consultation period; giving of a report to the Minister on the proposed modification considering the public submissions; or consideration by the Minister, in deciding whether to approve or disapprove of the modification, of the public submissions or a report on the proposed modification. None of these steps need to be undertaken in relation to a request for modification.

  1. The scheme for modification of an approval stands in stark contrast to the scheme for approval to carry out a project or of a concept plan. Before the Minister can give those approvals, there must be a period of public consultation in which the environmental assessment is made publicly available and the public may make a written submission (s 75H(3) and (4); consideration and various responses to the issues raised in the public submissions, including a preferred project report that outlines any proposed changes to the project to minimise its environmental impact (s 75H(5)-(7)); the giving to the Minister of the Director-General's report that includes the environmental assessment and any preferred project report (s 75I(1) and (2)); and consideration by the Minister, when deciding whether or not to give approval to the carrying out of the project or for the concept plan, of the Director-General's report (s 75J(2)(a) and s 75O(2)(a)). The making publicly available of the environmental assessment for an application for approval to carry out a project or for a concept plan can be seen in this scheme to be critical and regulate the exercise of the powers to approve the carrying out of a project (under s 75J(1)) or to approve a concept plan for a project (under s 75O(1)).

  1. Having regard to the requirement in s 75X(2)(f), the power to modify an approval under s 75W(4) and the statutory scheme for modification of approvals, it was not a purpose of the legislation that an act done in breach of s 75X(2)(f) should be invalid.

  1. This conclusion is not affected by the legislative pronouncement in s 75X(5) that the only requirement of Part 3A 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 s 75H (or under that section as applied by s 75N). In terms, s 75X(5) does not apply to the modification of an approval under s 75W. Furthermore, s 75X(5) does not preclude a court finding that other exercises of statutory power in breach of a condition regulating the exercise of that power are invalid: see Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [29]-[32].

  1. For the sake of completeness Mr Lester submitted that even if the Court found that there was no statutory mandate in Part 3A to make the environmental assessment publicly available, nevertheless the provisions of s 5(c) of the Act (which states that an object of the Act is to provide increased opportunity for public involvement and participation in environmental planning and assessment), in effect, required an implication to be made in the statutory regime relating to the modification of an approval of a project, that any environmental assessment upon which the Minister relied in granting the modification should be made publicly available. In my view this submission is without merit. It is unsustainable given the context and text of ss 75W and 75X(2) described above.

Conclusion and orders

  1. The appeal should be dismissed. The parties accepted that costs should follow the event.

  1. The orders I propose are:

(1)   Appeal dismissed.

(2)   The appellant to pay the costs of the first and second respondents of the appeal.

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Decision last updated: 06 March 2013

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Amaya v Everest Property Holdings Pty Ltd [2010] NSWCA 315
Smith v Wyong Shire Council [2003] NSWCA 322
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54