Mandalong Progress Association Inc v Minister for Planning - [2003] NSWLEC 141

Reported Decision: 126 LGERA 408

Land and Environment Court

of New South Wales

CITATION: Mandalong Progress Inc. v Minister For Planning And Anor. [2003] NSWLEC 141

PARTIES:
APPLICANT:
Mandalong Progress Inc.
RESPONDENTS:
Minister For Planning And Anor.

FILE NUMBER(S): 40510 of 2002

CORAM: Bignold J

KEY ISSUES: Development Consent :- alleged breach of condition by Director-General-whether claim is justiciable as a breach of the Act.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 122, s 124

CASES CITED: Building Owners and Managers Association of Australia v Sydney City Council (1984) 53 LGRA 54;
Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34;
Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 144;
F Hannan Pty Ltd v Electricity Commission of NSW No (3) (1985) 66 LGRA 306;
Port Stephens Council v Fidler (1997) 94 LGERA 298;
Rao v Canterbury City Council (2000) 112 LGERA 360;
Sydney City Council v Building Owners and Managers Association (1985) 2 NSWLR 383;
Payne v Mosman Municipal Council (2000) NSWLEC 25;
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355;
Sahade v Mosman Municipal Council (2000) NSWCA 251;
Stubbs v NRMA Insurance Ltd (1997) 42 NSWLR 550

DATES OF HEARING: 17-19/02/03, 25/02/03, 04/03/03, 12/03/03

DATE OF JUDGMENT:
06/18/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr N Cotman SC with Mr Raphael, Barrister
SOLICITORS
The Hargraves Practice
RESPONDENTS:
Mr B Preston SC with Ms J Jagot, Barrister
SOLICITORS
Ms C Hanson, Solicitor Department of Urban Affairs and Planning

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 40510 of 2002

Coram : Bignold J

18 June 2003

MANDALONG PROGRESS ASSOCIATION INC.

Applicant

MINISTER FOR PLANNING

First Respondent

DIRECTOR-GENERAL OF URBAN AFAIRS AND PLANNING

Second Respondent

JUDGMENT

A. INTRODUCTION

1. By its further amended application filed in Court on 18 February 2003, the Applicant (the Progress Association) seeks declaratory and injunctive relief in respect of a condition of development consent granted by the first Respondent (the Minister) on 14 October 1998 for an extension to underground coal mining activities for the Cooranbong Colliery, now known as the Mandalong Valley Mine (the development consent) and in respect of the functions imposed by that condition upon the second Respondent (the Director-General).

2. Ultimately, the only relief claimed by the Progress Association is the following mandatory order, remedying what is claimed to be the existing and continuing, but remediable, breach of the relevant condition of the development consent:—

An Order that the Director-General select a consultant to perform, and manage the performance of, a flood study to determine the 1:100 year flood, and further define the existing flood hazard and the potential future flood hazard resulting from mining, including public consultation and submission process.

3. The relevant condition of the development consent (Exhibit 1) is Condition 67 which provides as follows:

67. The Applicant shall participate in and contribute funds to the preparation of a flood study to determine the 1:100 year flood, and other such matters relating to long term flooding as considered necessary by the Director-General in consultation with Council and DLWC to implement the conditions of this consent. The study shall be managed by the Director-General, conducted by a consultant selected by the Director-General and completed within six months of the date of consent. The amount of reasonable funding required from the Applicant shall be determined by the Director-General. The study shall include further definition of the existing flood hazard and the potential future flood hazard resulting from mining, and include a public consultation and submission process. The results of the study shall be incorporated into a revision of the Water Management Plan as required by Condition 61. Copies of the study shall be made available to the Director-General, DLWC, Council and the Community Consultative Committee within fourteen days of completion to the Director-General’s satisfaction.

Note: This study is not intended to be a floodplain management study, which is covered by Condition 111.

4. The Respondents oppose the making of such an order on two grounds—firstly, upon the factual ground that the Progress Association has not established any relevant default of compliance with the requirements of Condition 67 of the development consent and secondly, upon the legal basis that Condition 67 does not impose any obligation on the Director-General that is either justiciable or legally enforceable.

5. It is the legal basis of the Director-General’s resistance of the particular relief claimed by the Progress Association which has generated a wide ranging debate upon the justiciability of the Progress Association’s claim that there has been relevant default in the implementation of Condition 67 which is capable of being judicially remedied, especially by order made pursuant to the Environmental Planning and Assessment Act 1979, s 124 (the EP&A Act).

6. The proceedings were originally commenced by way of Summons filed in the Supreme Court of NSW on 5 July 2002 brought by the Progress Association against the Minister Administering the Environmental Planning and Assessment Act (a statutory corporation created by the EP&A Act, s 8).

7. That Summons was transferred to this Court by consent orders made by the Supreme Court on 19 July 2002.

8. The transfer to this Court of the Summons filed in the Supreme Court is provided for by the Land and Environment Court Act 1979,(LEC Act), s 72 where the Supreme Court is of opinion that the proceedings commenced in that Court “could or should have been commenced” in this Court.

9. Although in response to Points of Claim, Points of Defence were later filed in this Court raising inter alia the issue of the proper constitution of the parties to the proceedings (since the statutory corporation created by the EP&A Act, s 8 had no role whatsoever in the granting of the development consent or its implementation) and the justiciability of the claims made in respect of Condition 67 of the development consent, at the commencement of the hearing no objection was raised to the Court granting leave to the Progress Association to amend its claims and to nominate the Minister and the Director-General as the relevant Respondents. Although in its amended formulation the Applicant’s claims continued to reflect the several claims to declaratory relief that had been made in the originating process in the Supreme Court, as I have earlier noted the only form of relief ultimately claimed by the Progress Association in the mandatory order directed to the Director-General to fulfil her functions under Condition 67 that I have earlier noted.

10. In leaving this introductory discussion, I should note that it was, of course, entirely appropriate that other relief originally claimed (which would or could have directly adversely affected the person having the benefit of the development consent, namely Powercoal Pty Ltd or its assignee Centennial Mandalong), was properly abandoned because that person had not been joined in the proceedings. The only reason proffered by the Progress Association for not proceeding against Powercoal was that it was not the person capable of rectifying the alleged failure by the Director-General to comply with Condition 67 of the development consent. No point was taken by the present Respondents that the amended proceedings were improperly constituted.

11. Since the competing argument has principally focussed on the question of the Court’s jurisdiction and power to enforce as against the Director-General compliance with Condition 67, I propose to determine the case by first considering the related questions of jurisdiction and justiciability and only thereafter the question whether the Progress Association has established a relevant default on the part of the Director-General in the implementation of Condition 67.

12. In so proceeding, I commence with the necessary presuppositions that (i) Condition 67 of the development consent relevantly imposes some relevant functions on the Director-General in the implementation of that condition, recognising that the true nature and scope of such functions is a matter in dispute (which can only be resolved by the proper construction of Condition 67 within the context of the development consent); and (ii) that there is a relevant breach of that condition recognising that this fact is also disputed by the Respondents.
B. DOES THE ALLEGED BREACH OF CONDITION 67 BY THE DIRECTOR-GENERAL GIVE RISE TO A JUSTICIABLE AND ENFORCEABLE CLAIM?

13. After Senior Counsel for the Progress Association had concluded his final address, Senior Counsel for the Respondents submitted that the Association’s claim to relief was not a justiciable claim in that the Court had no jurisdiction or power to grant the relief claimed. This was principally because the alleged breach by the Director-General of Condition 67 of the development consent was not relevantly a “breach” of the EP&A Act within the meaning of the EP&A Act, s 124(1) and therefore the remedial power conferred upon the Court by that provision was not enlivened. An alternative argument in support of the Respondents’ contention was that the functions imposed upon the Director-General by Condition 67 were not legally enforceable obligations.

14. The Respondents advanced the following arguments why the alleged breach by the Director-General of Condition 67 was not relevantly a breach of the EP&A Act—

(i) Notwithstanding the undoubtedly wide scope and ambit of the EP&A Act, s 122, it was only a definitional provision and accordingly, by itself did not independently operate to create a relevant obligation that gave rise to the possibility of there being “a breach of the Act” that was susceptible of a remedying order made pursuant to the EP&A Act, s 124. Rather, it depended upon the existence of a substantive provision of the EP&A Act creating the relevant obligation founding the possibility of there being a breach of the Act.

(ii) In the present case alleging a breach by the Director-General of Condition 67, the only possibly relevant substantive provision of the EP&A Act was s 76A(1) but since that provision in terms only applied to prevent a person from carrying out development unless a development consent for that development had been obtained and the development was carried out in accordance with that consent, it had no application to the alleged breach by the Director-General who by virtue of her functions under Condition 67 was not engaged in carrying out any development.

(iii) In any event, since it was not within the competence of the EP&A Act for a consent authority to impose conditions on the grant of development consent requiring a person, other than the developer (including his agents, servants or privies) to do anything in relation to the carrying out of the approved development, Condition 67 should be read down so as to be within the scope of the relevant power (ss 80 and 80A) to the end that any requirement imposed on the Director-General by Condition 67 must be regarded as having effect as only imposing an advisory requirement but not a legally enforceable requirement.
(iv) As an alternative to proposition (iii) to the extent that Condition 67 imposed any duty on the Director-General, it was not intended to create any legal obligation to the intent that any default in the undertaking of that duty carried no legal sanctions—civil or criminal.

15. In answer to the Respondents’ objection to absence of jurisdiction and lack of justiciability and enforceability of the alleged breach by the Director-General of Condition 67, the Progress Association makes the following submissions—

(i) The EP&A Act, s 122 is not merely a definitional provision. Rather, it creates a substantive connection between the Act and the conditions of development consent by deeming the latter to be within the scope of the former for the purposes of civil enforcement.

(ii) The allegation of breach of condition 67 falls within the scope of s 122(b)(iii) and enlivens the power conferred upon the Court to make a remedying order pursuant to the EP&A Act, s 124.

(iii) The EP&A Act, ss 123 and 124 do not necessarily require that the defendant in proceedings brought under those sections to be the person who is in “breach of the Act”.

(iv) The EP&A Act, s 124 confers a wide discretionary power to make orders to remedy a breach of the Act where the relevant discretion extends to (a) what order may be made and (b) against which persons it is made.

(v) If contrary to the plain effect of s 122 it were necessary for an applicant claiming an order pursuant to s 124 to establish a breach of the Act (by virtue of a breach of a condition of development consent) independently of the operation of s 122, it is clear in the present case that there is such a breach, namely the carrying out of the approved development in circumstances where condition 67 has not been complied with, such conduct being relevantly proscribed by the EP&A Act, s 76A(1).

16. In my judgment, the alleged breach by the Director-General of Condition 67 falls within this Court’s jurisdiction (see s 20(1)(c)) of the LEC Act and the Progress Association’s claim to relief is a justiciable and legally enforceable claim (see the EP&A Act, ss 123 and 124).

17. In so concluding, I would emphatically reject the Respondents’ fundamental arguments (i) that s 122 depends upon some other substantive provision in the EP&A Act, to create the relevant obligation giving rise to the possibility of a “breach of the Act”; and (ii) that the obligation imposed upon the Director-General by Condition 67 does not create any legally enforceable obligation.

18. Before stating my reasons for so concluding, it is necessary to recite the provisions of the EP&A Act relevant to the parties’ competing arguments. (For ease of understanding, I shall recite the provisions as currently in force even though the grant of the development consent was made in terms of the EP&A Act as in force prior to the commencement on 1 July 1998 of the Environmental Planning and Assessment (Amendment) Act 1997 (Act No 152 of 1997), since the current provisions substantially re-enact the former provisions).

19. The first group of provisions (ss 80(1) and s 80A(1) and s 79C(1)) concern the power to determine a development application by granting development consent subject to conditions—

80. Determination

(1) General

A consent authority is to determine a development application by:

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

80A. Imposition of conditions

(1) Conditions---generally

A condition of development consent may be imposed if:

(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

(b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or

(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(d) it limits the period during which development may be carried out in accordance with the consent so granted, or

(e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or

(g) it modifies details of the development the subject of the development application, or

(h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)--(9) of this section or section 94 or 94F

79C. Evaluation

(1) Matters for consideration---general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and

(iii) any development control plan, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

20. The next group of provisions (Division 3 of Part 6) concern the Court’s powers to make orders to remedy or restrain a breach of the EP&A Act. (The relevant conferral of jurisdiction is found in the LEC Act, s 20(1)(c).)

122. Definitions

In this Division:

(a) a reference to a breach of this Act is a reference to:

(i) a contravention of or failure to comply with this Act, and

(ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and

(b) a reference to this Act includes a reference to the following:

(i) the regulations,

(ii) an environmental planning instrument,

(iii) a consent granted under this Act, including a condition subject to which a consent is granted,

(iv) a complying development certificate, including a condition subject to which a complying development certificate is granted,

(v) an order under Division 2A.

123. Restraint etc of breaches of this Act

(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

124. Orders of the Court

(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:

(a) where the breach of this Act comprises a use of any building, work or land---restrain that use,

(b) where the breach of this Act comprises the erection of a building or the carrying out of a work---require the demolition or removal of that building or work, or

(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land---require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:

(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

(4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.

(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979

21. It should be noted that most of the terms or expressions contained in s 122(b) are themselves defined by the EP&A Act. It is not necessary to recite these definitions other than to note that the reference to an “order under Division 2A” is a reference to Division 2A of Part 6 of the Act which contains a comprehensive code for the giving of statutory enforcement orders by a council (or other consent authority). Orders may be given in 17 separate stipulated circumstances including circumstances where unlawful development has been carried out.

22. The next group of provisions are contained in Division 1 of Part 4 which prescribes a “threefold classification” for “the carrying out of development” namely:—

(i) development that does not need development consent (s 76);

(ii) development that needs development consent (s 76A); and

(iii) development that is prohibited (s 76C).

23. For present purposes it is sufficient to only recite 76A(1) which provides as follows:

76A. Development that needs consent

(1) General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

24. Section 76C (also contained in Division 1 of Part 4) should be noted. It provides as follows:

76C. Relationship of this Division to this Act

This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.

25. The final provision to note is the “offence creating” s 125C which provides as follows:

125. Offences against this Act and the regulations

(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

(2) Where any matter or thing is by or under the regulations directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by the regulations to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against the regulations.

(3) Nothing in subsection (1) or (2) applies in respect of a direction given under this Act by the Minister to a public authority.

(4) It is a sufficient defence to a prosecution for an offence that arises from the failure to comply with an order under Division 2A if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order.

(5) Unless the context otherwise requires, a requirement under this Act or the regulations that must be complied with by a particular time, or within a particular period, continues after the time has expired or the period ended, and so must still be complied with.

26. In my judgment, the jurisdiction and power of the Court to make an order pursuant to s 124(1) remedying a breach of the Act is enlivened by the Court being satisfied that there is a “breach” (meaning a “contravention of” or a “failure to comply with”) of a condition subject to which a development consent was granted: s 122(b). Condition 67, in my opinion, qualifies as a relevant “condition”.

27. The source of relevant obligation in respect of which there is relevantly the possibility of a “breach” is the content and operation of the condition itself. So much is patently clear from the express terms of s 122.

28. The Respondents’ argument that s 122 is merely definitional and does not operate independently of the existence of some other substantive provision of the EP&A Act itself creating the relevant obligation in respect of which there is the allegation of breach which relevantly constitutes a “breach of this Act” within the definition provided by s 122 emasculates both the true effect of s 122 and more importantly, the powers expressly conferred upon the Court by s 124(1) “to restrain or remedy a breach of the Act”.

29. As earlier noted, Division 3 of Part 6 of the EP&A Act contains only the three sections—122, 123 and 124—that have been recited. That Division provides a code concerning “orders made by the Court to remedy or restrain a breach of the Act”. Part 6 of the EP&A Act is headed “Implementation and Enforcement” and contains six separate Divisions which collectively provide various means and mechanisms for the enforcement of the EP&A Act and the environmental planning, assessment and protection regimes that that Act inspires and institutes.

30. In F Hannan Pty Ltd v Electricity Commission of NSW No (3) (1985) 66 LGRA 306 Street CJ at 310 to 313 comprehensively considered the civil enforcement jurisdiction conferred upon the Court by s 122, 123 and 124, in conjunction with the jurisdiction conferred upon the Court by the LEC Act, s 20.

31. That extended passage (which is too long to fully quote) contains the classic exposition of the nature and scope of the Court’s jurisdiction and powers to restrain or remedy a breach of the EP&A Act. Included in that analysis is the observation by the Chief Justice at 310 that s 122 “is an interpretation provision of wide import’. This is to acknowledge the obvious width of the composite defined term “breach of the Act” (because it is obviously a definition by extension) and it is this composite term that founds the breadth of the Court’s power under s 124 to “make such order as it thinks fit to remedy or restrain the breach”.

32. The Chief Justice’s analysis reaches its apex in the following passage commencing at p 312:

Here, then is the legislative scheme both establishing the substantive law governing environmental matters and setting up the curial structure charged with the exclusive jurisdiction to determine disputes arising within that field of substantive law. The width of the powers and jurisdiction of the Land and Environment Court is apparent from the legislative provisions that I have mentioned. These need no elaboration. Likewise it is apparent that the court enjoys a wide discretionary range within which to consider the formulation of orders or to remedy or restrain breaches of the planning legislation. It by no means follows that the mere demonstration of a right that a party would be entitled to expect to have enforced b the ordinary civil courts will be afforded equivalent enforcement by the Land and Environment Court. It is the duty of that Court, in formulating

, to have regard at all times to the pursuit of the objects of the

as set out in s 5. This involves, in appropriate cases, the evaluation of matters extending beyond the mere determination of the rights and matters in dispute between the immediate parties. It involves due weight being given to the public interest and the interests of other affected persons in the overall context of the pursuit of the objects broadly set out in s 5. It is at this point that I revert to s 123 of the

. Subsection (1) of that section provides:

(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed b or as a consequence of that breach.

This provision read in the context of the objects of the Act as set down in s 5 makes it apparent that the task of the Court is to administer social justice in the enforcement of the legislative scheme of the Act. It is a task that travels far beyond administering justice inter partes. Section 123 totally removes the conventional requirement that relief is normally only granted at the wish of a person having a sufficient interest in the matters sought to be litigated. It is open to

to bring proceedings to remedy or restrain a breach of the Act. There could hardly be a clearer indication of the width of the adjudicative responsibilities of the Court. The precise manner in which the Court will frame its orders in the context of particular disputes is ultimately the discretionary province of the Court to determine in the light of all of the factors falling within the purview of the dispute.

33. Accordingly, my principal reason for rejecting the Respondents’ fundamental submission that there can be no “breach of the EP&A Act” as that expression is defined in s 122 unless the source of relevant obligation (the subject of the allegation of breach) is found in another substantive provision of the EP&A Act, is that the argument involves a misconstruction of s 124(1) because it fails, as a matter of conventional principles of interpretation, to give any effect in s 124(1) to the defined expression “breach of the Act”.

34. Moreover, the Respondents’ argument that s 122 is merely a definitional provision fails to appreciate the wide “extension” given to the meaning of the expression “this Act” by s 122(b). It is obvious that that “extension” aspect of the definition exceedingly broadens the concept of “this Act” to include the six different source materials (other than the Act) identified in s 122(b) (subpar (iii) creating two separate sources—namely (i) the development consent; and (ii) the conditions of consent).

35. It is this particular failure in the Respondents’ appreciation of the import and impact of s 122 that contains the seed of the ultimate fallacy in the argument, namely that the relevant obligation (the subject matter of the alleged breach) must be found in another substantive provision of the EP&A Act. This argument is self-evidently untenable once the “extension” effect of s 122(b) is truly appreciated because it is obvious that since each of the six sources of materials is a different phenomenon or entity from the EP&A Act, it is hardly to be expected that that Act will contain other substantive provisions founding the relevant obligations for each of these six separate sources. It is surely obvious that each of those source materials being separate and distinct from the EP&A Act, it is in the content of those source materials themselves, and not in the EP&A Act, that the relevant obligations are to be discovered.

36. What I have said is not theoretical speculation but unsurprisingly, is entirely substantiated by consideration of the provisions of the EP&A Act, and the provisions of those six sources of materials (which by “extension” become or are deemed to be included in the expression “this Act”).

37. For example, take the case of “an environmental planning instrument” (s 122(b)(ii)), which imposes an obligation upon a public authority to acquire land zoned “open space” under a local environmental plan following written request from the owner of the land.

38. This type of obligation that is conventionally imposed by an environmental planning instrument was considered by the Court of Appeal in Port Stephens Council v Fidler (1997) 94 LGERA 298, where it was held that the failure of the Council to acquire the land, in response to the written request by the land owner, was relevantly a “breach of the Act” enforceable by this Court making an order pursuant to s 124(1) of the EP&A Act.

39. For present purposes, the importance of the decision in Fidler is the fact that the relevant obligation to acquire the land was contained in an environmental planning instrument and not in the EP&A Act and the obligation was held to be enforceable by order made pursuant to s 124(1) upon the basis that there had been a relevant “breach of the Act” by virtue of the Council’s failure to acquire the land following the request of the land owner.

40. Another important aspect of the decision in Fidler was the Court’s interpretation of the expression “contravention of, or failure to comply with” adopted in the definition of “breach” contained in s 122(a).

41. That interpretation rejected the appellant’s submission that “some element of fault” had to be demonstrated before it could be held that there had been a failure to comply with the relevant obligation imposed by the environmental planning instrument.

42. Powell JA who gave the leading judgment dealt with the submission in the following passages commencing at p 302:

While it is true, that there may be some circumstances in which the words

carry with them the suggestion of fault on the part of a person who is alleged to have failed or whose alleged failure is in question, fault is not a necessary part of meaning of either of those words.

Thus the Concise Oxford Dictionary (7th ed, 1982) at 347 records (inter alia) that the word fail, in either its intransitive, or transitive, senses as a verb may include a meaning not be able to while the word failure is given, as one of its primary meanings non-occurrence. Similar meanings may be found in The Macquarie Dictionary (1981) at 436 where the verb fail is said to include as a primary meaning be wanting in action and the word failure is said to include as primary meanings a proving unsuccessful and non-performance of something due or required.

It seems to me that, when one sees that the word failure in s 122(a)(i) of the Environmental Planning and Assessment Act is used in a disjunctive sense from the word contravention—a word which, to me, suggests a knowing breach—one is entitled to proceed upon the basis that one may fail to comply with a provision of the Act or of a relevant planning instrument, even though there is no fault, in the conventional sense, in the failure involved.

43. Sheller JA and Sheppard AJA agreed with the leading judgment except that the latter reserved his position as to whether a “contravention” in terms of s 122 “necessarily involves an element of fault”: see at 303.

44. The interpretation in Fidler of the expression “failure to comply with” appearing in s 122(a) again only serves to demonstrate the great width of the power conferred upon the Court by s 124 of the EP&A Act, understood in the light of the very wide import of s 122.

45. In leaving Fidler, it should be noted that as early as 1984 this Court had rejected an argument that had sought to confine the expression “breach of the Act” appearing in s 122 to cases involving some unlawfulness: see Building Owners and Managers Association of Australia v Sydney City Council (1984) 53 LGRA 54 at 71 and 72 where Cripps J said:

In my opinion, the imposition of an invalid condition requiring monetary contribution or the adoption of a policy designed to exact a monetary contribution unauthorized by the relevant legislation is relevantly a breach of the

because a council imposing such an invalid condition or adopting such an unauthorized policy is not complying with the relevant legislation.

In Hale v. Parramatta City Council (1982) 47 L.G.R.A. 269; Kivi v Forestry Commission of New South Wales (1982) 47 L.G.R.A. 38 and Kavanagh v. Baulkham Hills Shire Council (1983) 48 L.G.R.A. 370, this Court made orders pursuant to s. 123 of the Act founded on non-penal breaches of the relevant legislation.

46. When that case went on appeal (Sydney City Council v Building Owners and Managers Association (1985) 2 NSWLR 383), Mahoney JA likewise dismissed the argument seeking to give a narrow scope to the defined concept “breach of this Act” in the following passage at 387:

Mr Bennett then submitted that s 123(1) was limited to proceedings in respect of

and that what the Council did in adopting the relevant plan of action and implementing it did not involve

. He submitted that

means essentially something attracting criminal sanction and that what the Council here did was not such.

Whatever be the meaning of breach in general, the term is by s 122 given a particular or extended meaning. I do not think that a contravention of or a failure to comply with an Act carries with it the connotations of criminal consequences. But, however this be, I do not think that s 123(1) was intended to be restricted in the way Mr Bennett suggests. His submission would have the result that, where things were done which were not in accordance with the Act, the subsection would give a right to any person to bring civil proceedings where criminal consequences were involved but not otherwise It is difficult to see why such a limitation should have been intended by the legislature when it enacted the subsection; and, in particular, if the purpose of it was to remove the restrictions imposed by the Boyce decision.

47. A further example of the definition by extension contained in s 122(b) may be considered, namely case of an “order under Division 2A” (s 122(b)(v). I have earlier noted that Division 2A of Part 6 contains a detailed code for the giving by a council or consent authority of statutory enforcement notices (including the conferring on the person served with a notice of a statutory right of appeal to this Court: vide s 121ZK). However, there is nowhere to be found in the forty or more sections contained in Division 2A of Part 6 any provision imposing any relevant obligation to comply with the statutory enforcement order. Yet if the Respondents’ argument be correct, a failure to comply with an order given under Division 2A will not be enforceable by a remedying order made pursuant to s 124(1) despite s 122(b)(v) because there is not to be found elsewhere in the EP&A Act a substantive provision imposing the relevant obligation. This again powerfully demonstrates the untenability of the Respondents’ argument, particularly in the light of the fact that s 121ZJ of the EP&A Act expressly recognises in subsection (1) the possibility of “proceedings before the Land and Environment Court that a brought by a person who gave an order against another person as a result of the other person’s failure to comply with the order”, where such contemplated proceedings clearly fall within the EP&A Act, ss 122 - 124

48. I come then finally to consider the Respondents’ argument as it is addressed to s 122(b)(iii) namely “a consent granted under this Act, including a condition subject to which a consent is granted”.

49. I do so, despite my firm view that what I have already said adequately demonstrates the fallacy in the Respondents’ fundamental argument. But I do so, because this case concerns, and only concerns, that particular aspect (by extension) of the defined term “breach of this Act” in s 122, and lest it be said by the Respondents that what I have said concerning environmental planning instruments and orders under Division 2A, as those sources are, by extension, included in the expression “this Act” in s 122(b) does not directly address the particular aspect of s 122 that is raised in the present case, namely Condition 67, being a condition of the development consent granted by the Minister for the colliery extension.

50. My consideration of this question must of course encounter the Respondents’ central thesis in this case that “the only provision of the EP&A Act which imposes a substantive obligation on a person to comply with conditions of a development consent is s 76A”.

51. But it must at once be appreciated that this central thesis only arises because of (i) the Respondents’ construction of ss 122, 123 and 124 (which I have held to be a misconstruction); and (ii) the Respondents' argument that the definition of “breach of the Act” only applies where there exists, another substantive provision of the EP&A Act which creates the relevant obligation, failure to comply with which constitutes the relevant “breach of the Act” (which I have already held to be a flawed argument).

52. In short, my construction of s 124 giving full faith and force to s 122, and my construction of s 122(b) recognising that it is the content and operation of each of the six separate sources of materials (which by extension, are included in the expression “this Act”) which creates the relevant obligation, creating the possibility of there being a breach, necessarily invalidates the Respondents’ central thesis.

53. But even apart from those reasons, there is another reason why the Respondents’ central thesis is unsustainable, namely that it entirely fails at the point of construing s 122 to distinguish between a breach of a provision of the EP&A Act proper, and a breach of one of the six other sources of materials which by extension are included in the term “this Act”.

54. The Respondents’ reliance upon s 76A as imposing the only substantive obligation to comply with conditions of development consent is doubtless correct so far as concerns a relevant breach of a provision of the EP&A Act in its unextended meaning. But it is clearly incorrect to apply s 76A to any of the “extensions” to “this Act”, including “a consent…., including a condition subject to which a consent is granted” (s 122(b)(iii) because the effect of the “extensions” being included within “this Act” is that each of those extensions have their own content which is necessarily separate from the provisions of the EP&A Act, and it is with their content that the search for relevant obligations is to be conducted, with the concomitant legal consequence that s 76A is simply not relevant.

55. By failing to appreciate the full effect of s 122(b) creating the six “extensions” to “this Act”, the Respondents’ argument in seeking to confine the relevant content (as a source of relevant objection) of these extensions to the provisions of the EP&A Act (eg s 76A) which create obligations in terms of that Act, is logically confused and ultimately misconceived.

56. Lest it be thought that the judgment of the Court of Criminal Appeal in Rao v Canterbury City Council (2000) 112 LGERA 360 gives some support for the Respondents’ central thesis that it is only s 76A that imposes a substantive obligation for a person to comply with conditions of development consent, I must say something about that case. First and foremost it must be appreciated that that case involved a criminal charge of an offence against the EP&A Act, s 125. It is therefore not a case concerned with the EP&A Act, ss 122, 123 and 124. It was in the context of considering the appellant’s argument that the charge of the offence was bad because it failed to identify the essential factual ingredients of the offence (in particular that it had not been pleaded that the offence was “the carrying out of development contrary to the specified conditions of the relevant development consent”) that Mason P (with whom the other members of the Court agreed) discussed the relationship between the EP&A Act, s 125 and s 76(2) (the latter provision being materially no different from s 76A(1), being its antecedent form). The President’s discussion of this relationship included the following observations at 365:

Another variant of the challenge was the submission that the charges made no reference to s 76(2) which gave statutory force to the consent conditions contravention of which is an offence by s 125(1). Section 76(2) contains a prohibition, but it is s 125(1) that imposes an offence referable to such a prohibition (see

(1997) 97 LGERA 125 at 130).

The summons adverts to the offence-creating provision (s 125) and the particular instrument taking effect under the Act (the development consent). In my view the omission to mention the provision giving mandatory effect to the condition (s 76(2)) is no more fatal than the omission to mention a section of the Crimes Act 1900 (NSW) making a particular offence a crime. Section 76(2) is not an essential factual ingredient of the s 125 offence, at least in a case such as the present where the charges identify particular conditions of a particular development consent and specify acts said to represent non-compliance with those conditions.

57. At p 366, the President, having concluded that the summons and order “were adequate in their specificity to put the appellant on notice of the charges he was facing”, made the following observation:

…..absence of reference to the linkage between the alleged infringed conditions and the environmental planning instrument giving them statutory force did not render the charges bad at law.

58. The President concluded his discussion with the following comment at 366:

I would not wish this to be read as an endorsement of the form of charge adopted in the present case The informant who avoids reference to the essential ingredients of s 76(2) in a case such as the present is flirting with great danger. Fortunately for the pleader in the present case, there was sufficient in the two charges to convey the essential nub of the contraventions charged.

59. Although Dowd and Austin JJ agreed with the President, the latter did not join in the President’s criticism of the charge (see at 375) because of his conclusion that s 76(2) was not a necessary ingredient in the establishment of liability for the offence against s 125. This was because of Austin J’s opinion that the relevant conditions of the development consent were properly described as “directions and prohibitions for the purposes of s 125(1)”: see at 373.

60. In so holding, Austin J made an important observation concerning the operative effect of conditions of development consent in the following passage at 373:

Obviously the directions and prohibitions in a case such as the present one are not absolute and unqualified. Since the applicant for development consent is not obliged to undertake the development once consent is granted, there is no absolute obligation to comply with the conditions of the consent. But in my view, once the development commences, the obligation to comply with the conditions becomes unqualified. That being so, the conditions are properly described as directions and prohibitions for the purposes of s 125(1).

61. This observation relevant to s 125 is to similar effect to the following observations at 364/365 made by the President in relation to s 76(2):

The submission at trial was that the development which was the subject of that consent was still to be carried out. Accordingly, where the summons charged that the consent had been implemented contrary to the specified conditions then it was raising an offence not known to the law because, the consent not having been completed, it could not be said to be implemented contrary to the conditions of the consent. The submission was rejected. Her Honour pointed out that s76(2) speaks of development that

. Although the work consented to had not been completely finalised, it was in train and the charge alleged departure from conditions regulating the development work itself.

The submission is repeated on appeal. In my view her Honour was perfectly correct. Some conditions are capable of breach in the course of implementation of the consent. Stipulations that specific trees are to be retained or protected by a suitable barrier erected prior to and maintained during building operations are clearly such and of their nature are capable of infraction during development work. Likewise with a prohibition against cutting down existing trees.

62. Having analysed the decision in Rao, I am of the opinion that it provides no support for the Respondents’ central thesis that in the context of the present proceedings which seek an order pursuant to s 124 remedying an alleged breach of a condition of development consent, s 76A is the only provision contained in the EP&A Act imposing a substantive obligation on a person to comply with conditions of development consent. The case simply does not address ss 122, 123 and 124.

63. However, the observations that I have recited that were made by the President and by Austin J in Rao, concerning the operativeness of conditions of development consent, are in my respectful opinion, of obvious assistance in construing the reference to a development consent and to conditions of development consent contained in s 122(b)(iii).

64. Properly construed, the reference in s 122(b)(iii) to a development consent and to conditions of development consent are references to an operative development consent and operative conditions of development consent in the sense explained in Rao. (I interpose that in the present case there is no doubt on the facts that the development consent and the conditions of consent (and in particular Condition 67) are relevantly an operative development consent and an operative condition of consent.)

65. It is necessary for me to consider another case relied upon by the Respondents in support of their submission that “S 76A is the door through which an Applicant for relief under the EP&A Act, s 124 must pass”.

66. In particular reliance was placed upon the following passage from the leading judgment of Davies AJA (with whom the other members of the Court of Appeal agreed) in Wilkie v Blacktown City Council (2002) 121 LGERA 444 at 454:

My impression of these provisions is that they are concerned with breaches of the EPA Act and authorise the Court to make orders against persons who are in breach of or who have breached the EPA Act. The Court's jurisdiction is enlivened by a breach of the EPA Act and it is empowered to make orders "to restrain the breach" and "to remedy the breach". The provisions do not suggest to me that orders may be made against persons who have not breached and are not in breach of the EPA Act. This is particularly so as any person may bring proceedings under the Act. A more expansive interpretation might be justified were the provisions to be seen as part of the armoury of an enforcement body.

(His Honour was there speaking of the provisions of ss 122, 123 and 124 of the EP&A Act which he had fully recited at 453)

67. In my judgment, there is nothing in the cited passage which supports the Respondents’ submission that “s 76A is the door through which an applicant for relief under s 124 of the EP&A Act must pass” even if the broad submission be confined to a case such as that raised by the present proceedings of a claim of an alleged breach of a condition of development consent for which a remedy by way of order pursuant to s 124 is claimed.

68. Moreover, it is to be noted that his Honour’s impressions do not include any observation of the meaning of the statutory expression “breach of this Act”. Rather, it appears that his Honour accepted the definition provided by s 122.

69. An important aspect of the decision in Wilkie should however be noted because of the light it casts upon a subsidiary issue keenly debated between the parties in the present case. This is the necessary connection for the purposes of making an order pursuant to s 124(1) remedying a breach of the Act between (i) the person breaching the Act and (ii) the person against whom the order is made.

70. As the judgment of Davies AJA demonstrates, there have been decisions, both in this Court (Payne v Mosman Municipal Council (2000) NSWLEC 25) and in the Court of Appeal (Sahade v Mosman Municipal Council (2000) NSWCA 251), that suggest that it is sufficient to obtain an order pursuant to s 124 to remedy a breach of the Act upon proof of such a breach without proof that it is the respondent to the proceedings who has committed that breach.

71. Although the decision in Wilkie stopped short of expressly overruling those decisions, it appears to me to be tolerably clear that an order pursuant to the EP&A Act, s 124 to remedy a breach of the Act may not be made against a person “who did not breach the Act and did not benefit from the breach” (see at 459). In amplification of that conclusion, Davies AJA at 459 said:

The terms used by her Honour,

and

describe no category of activity which, absent the use of the expression in a statute, an instrument or a covenant, is known to the law as giving rise to an obligation to remedy a breach. The terms are not wide enough to describe a situation of

or of

even if these terms applied to s 124, which they do not. The terms may well have relevance to the exercise of discretion once a breach by the person was established. But they do not authorise the making of an order of rectification against Ms Wilkie who did not breach the EPA Act and did not benefit from the breach.

72. In my judgment, nothing decided in Wilkie supports the Respondents’ central thesis that the Applicant’s claim to an order pursuant to s 124 to remedy the alleged breach of Condition 67 “must pass through the door of the EP&A Act, s76A(1)”.

73. Moreover, to the extent that Wilkie has decided, contrary to earlier pronouncements, that an order may be made pursuant to s 124 to remedy a breach of the EP&A Act only against a person who has committed that breach, it presents no legal obstacle to the Applicant’s claim because that claim is that it is the Director-General (and not the applicant for development consent) who has breached condition 67 and the order sought to remedy that breach is against the Director-General and is such that the breach can even at this stage still be remedied.

74. The last mentioned point is important because it is a matter that was emphasised by a very recent decision of the Court of Appeal in Fastbuck$ v Dudley Pastoral Co Pty Ltd and Ors (2003) NSWCA 126 in the context of considering whether an order pursuant to the EP&A Act, s 124 might be made to remedy an alleged breach of a condition of development consent.

75. As it happens, of all existing authorities, this case comes closest to the present case inasmuch as it involved a claim brought by a third party against the Council and Applicant for development consent that a condition of development consent had not been complied with and a claim for a mandatory order that that condition now be complied with.

76. Although the Court of Appeal unanimously held that the appeal must be dismissed because the proceedings were not properly constituted (because the current owner of the approved development site upon which the approved development had already been completed, had not been joined as a necessary party), the judgments contain some discussion of the potential for an order pursuant to the EP&A Act, s 124 to have been made to remedy the alleged non-compliance with the condition of development consent.

77. In that case, development consent had been granted for a rural tourist facility subject to conditions, including the following condition C6—

A report is to be submitted from a suitably qualified person addressing the risk of land contamination due to past use of chemicals. The report is to be prepared in accordance with ANZECC and EPA guidelines and submitted for the approval of Council’s Environmental Health Officer prior to release of the Building Application

78. In their original form the proceedings brought in this Court claimed a declaration that Condition C6 had not been satisfied and that work on the approved development cease pending the conduct of an independent land contamination audit of the approved development site.

79. On the appeal against this Court’s decision dismissing the proceedings, the appellants significantly amended the relief claimed by confining their relief to an order that:

a site contamination audit by the EPA accredited Consultant be conducted……and any required remediation be carried out in accordance with the requirements of those guidelines

80. I confine citation to their Honours’ observations on the question of the jurisdictional basis of s 124 to make the order ultimately claimed by the appellants, although these observations also deal with the insuperable problems created by the absence from the proceedings of the current owner of the development site.

81. Giles JA made the following observations at pars 17 to 20:

17 In the Land and Environment Court an order can be made to remedy or restrain a breach of the

1979 (

), see ss123, 124. Assuming that condition C6 had not been satisfied, and that there was thereby a breach of the Act, in the absence of CBCL as a party the judge should not have made the declaration claimed and could not have made orders requiring further soil samples and restraining occupation of the Coorabell land. It would have been erroneous to make the declaration in the air, not binding on the then owner and occupier of the land and without consequential relief, and the orders could not be made because they had to be orders binding on the owner and occupier of the land. CBCL was a necessary party to any proceedings because it was directly affected by the declaration and because remedying or restraining the breach would require action by it or involve restraint upon its actions.

18 Once it became apparent that prior to the filing of the application CBCL had become the owner of the Coorabell land and Dudley was no longer its owner, in the absence of amendment to join CBCL the judge should have dismissed the proceedings.

19 In the appeal the relief claimed in order 2 was similarly not relief which could be granted in the absence of CBCL as a party. Neither Dudley nor the Council could be ordered to conduct the site contamination audit or carry out any required remediation, or could do those things without the consent of CBCL. Assuming that CBCL could be ordered to conduct the site contamination audit or carry out any required remediation (and I expressly only assume that it could), it was not a party.

20 It is important that courts not entertain hypothetical questions. Since CBCL will not be bound by whatever might be decided as to the satisfaction of condition C6, in my opinion the better course is not to enter upon the grounds of appeal. The appeal should be dismissed because the relief claimed cannot be granted. It is regrettable that so many days have been devoted to this litigation, at first instance and on appeal, when its flawed constitution should have been recognised and addressed (by joinder of CBCL or prompt dismissal) at an early time.

82. The judgment of Santow JA (with which Meagher JA agreed) contains a more comprehensive discussion of the question of the jurisdictional basis for granting relief in the following passages at pars 56 to 61:

56 A fundamental difficulty with the orders sought is their lack of any jurisdictional basis coupled with the failure to join the registered proprietor CBCL Pty Limited insofar as any action was sought to be compelled. As to action sought to be compelled, as I have said no injunctive relief was sought, any intention to seek it being disavowed by reason of the resort being up and running. However further remediation was sought to be compelled, depending on the outcome of the further report, if ordered and if it revealed contamination. The Appellants in answer to questions from the Bench indicated through Mr Fast Buck$ that he was not able to say specifically what order was required nor the jurisdictional basis for it, nor what consequence should ensue if it be the case that, in the events that happened, there had not been compliance with Condition C6. Thus neither s123 nor s124 of the EPA Act, quoted below so far as they could conceivably be relevant, were invoked. Nor were they made the subject of any application for an order of the Court to be substituted for the dismissal by Cowdroy J of the original application. Nonetheless these provisions should be considered as the Respondents readily conceded. Thus quoting the relevant parts of the sections:

(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2) Proceedings under this section may be brought by a person on his own behalf or on behalf of himself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

.........

124 Orders of the Court

(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2) Without limiting the powers of the court under subsection (1), an order made under that subsection may:

(b) where the breach of this Act comprises the erection of a building or the carrying out of a work-require the demolition or removal of that building or work, or

(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land-require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

......

57 It was pointed out by the Respondents to assist the Court that were the earlier report (contrary to their submissions and the finding of the Trial Judge)

in conformity with Condition C6 and if this had the consequence that the Council's purported state of satisfaction with compliance with C6, based on that report, was incapable of rendering Condition C6 satisfied, it may follow that

was thereby committed by reason of the definition of that phrase in s122 of the

. Section 122 provides, inter alia, that

. Moreover s122(b) provides that a reference to this Act includes a reference to:

58 Let it be assumed for purposes of argument that the earlier report was not capable of satisfying Condition C6. The question then becomes whether s124 is capable of grounding the orders sought, namely requiring a further contamination report in conformity with C6 and any remediation in consequence to be performed. It will be noted that subs (2) of s124 is expressed to be without limiting the powers of the court under subsection (1).

59 Clearly enough, on the assumption earlier made, a breach of this Act has occurred by reason of failure to comply with a condition, subject to which the relevant consent was granted. An order restraining the breach, in the sense of preventing the continued use of the now completed resort, is expressly disavowed. The only conceivable basis under s124 for an order seeking a fresh report and remediation is that this is an order to remedy ... the breach. The assumed breach would have to be failure to submit a report satisfying Condition C6 before obtaining the release of the building application. But is such breach capable of now being remedied? The answer must be in the negative when it is appreciated that the relevant report, which on the hypothesis presently adopted did not conform to Condition C6, was to be submitted prior to the release of the building application. Condition C6 makes that mandatory. Thus the orders now sought by the Appellants could not remedy that breach as it is not now capable of remedy.

60 There is in any event another fundamental difficulty. CBCL Pty Limited the registered proprietor and trustee under a unit trust in respect of the property has never been joined. That is a fatal impediment to making the orders sought, even if otherwise able to be made, and even if justified. The Appellants' attempted answer by reference to the matters put under their amended points of claim before Cowdroy J (Orange 10) takes matters no further. In particular the order now sought requires personal action namely obtaining another contamination report, and undertaking any remediation so identified. That can only come from CBCL. It is simply not the case that such obligations "attach to the land itself" (Orange, 10 para 6(iii)).

61 It follows therefore that the Appellants' appeal must fail at the threshold. But even were an order capable of being framed within s124(1) to remedy ... the breach in the way in which the Appellants press, the Grounds of Appeal could not succeed for reasons I will explain briefly.

83. In my judgment, these relevant observations from the judgments in Fast buck$ support the Applicant’s claim to an order pursuant to the EP&A Act, s 124(1) to remedy the alleged breach of Condition 67 to the extent that they recognise the jurisdictional basis of an order being made under s 124 to remedy a breach of a condition of development consent.

84. For all the foregoing reasons, I hold that the Court possesses the jurisdiction and the power to grant relief to remedy the breach of the Act alleged against the Director-General.

85. However, it is now necessary to consider the Respondents’ argument that the Applicant’s claim of alleged breach by the Director-General of Condition 67 is non-justiciable because whatever be the obligations that are imposed on the Director-General by that condition, they are not legally enforceable because (i) either it is not within the competence of a consent authority acting pursuant to the EP&A Act, s 80A to impose development consent conditions that require action by a third party or stranger to the development consent or (ii) it cannot have been the intention of the Minister to have imposed legally enforceable obligations on the Director-General. It is because the obligations imposed upon the Director-General by Condition 67 are not legally enforceable that the Respondents submit that the Applicant’s claim is not justiciable.

86. In my judgment, the Respondents’ arguments are not sustainable At the outset, it should be noted that they involve a sophisticated gloss on the language of the EP&A Act, ss 122, 123 and 124 by suggesting a species of breach of obligation that is incapable of being remedied pursuant to order made under s 124 despite the context of the wide discretion vested in the Court to grant (or to withhold) a remedy: see F Hannan.

87. The first reason advanced by the Respondents raises the question of the legitimacy of the scope of conditions that were imposed by the Minister upon the grant of the development consent, and in particular asserts that it is beyond the competence of the consent authority to impose as conditions of development consent obligations requiring a third party to the development consent to do something etc in connection with the carrying out of the development.

88. In my judgment, this submission unintentionally distorts the true effect of the functions imposed on the Director-General by Condition 67, or at the very least unjustifiably assigns to the Director-General the dubious status of being a “third party” to the development consent.

89. The true and obvious effect of Condition 67 is that it imposes a function on the Director-General in her capacity as the Department Head of the Minister’s Department: see Div 2 of Part 2 of the EP&A Act. Section 15 refers to “the functions” conferred or imposed on the Director-General “by or under this or any other Act” and that expression is wide enough (“functions” is defined by s 4(1) to include “powers, authorities and duties”) to comprehend a function imposed by a condition of development consent granted by the Minister: cf Austin J’s analysis in Rao of the similar statutory expression in the EP&A Act, s 125.

90. Moreover, by s 13(2) the Director-General in the exercise of any function conferred upon her “by or under this Act” is “subject to the control and direction of the Minister” (subject to an immaterial “exception” in respect of the content of a recommendation or report made to the Minister). Where, as in the present case, the Minister has relevantly granted the development consent, it is obvious that any function imposed on the Director-General by conditions of that development consent (as will be shown, there are multiple functions so imposed by numerous conditions of the development consent) is imposed by the Minister, as the relevant consent authority, that she is created his authorised agent to administer the relevant conditions of consent as part and parcel of the overall implementation and supervision of the development consent.

91. The various functions imposed upon the Director-General by the conditions of the development consent are too numerous and extensive to be quoted in full. However, by way of illustration of the various functions imposed upon the Director-General, I summarise the following conditions of the development consent (Exhibit 1):—

(i) Condition 2
The consent for mining is granted for 21 years but is subject to the power of the Director-General to order the applicant to cease activities causing serious environmental concerns until these concerns have been addressed to the satisfaction of the Director-General;

(ii) Condition 7 requires the applicant to prepare an “Environmental Management Strategy” “to the satisfaction of the Director-General prior to the preparation of the first Mining Operations Plan”;

(iii) Condition 20 requires the applicant to undertake a detailed and ongoing monitoring program of subsidence resulting from mining “…..to the satisfaction of the Director-General”.

(iv) Under Conditions 31, 34, 35, 36, 38 and 39 the Director-General is given various functions in the regime requiring acquisition of lands and payment of compensation consequent upon adverse affectation being caused by the approved mining activities.

(v) Condition 45 requires the applicant to prepare and implement a Noise Management Plan to the satisfaction of the Director-General.

(vi) Condition 50 requires the applicant to prepare and implement an Air Quality Management Plan to the satisfaction of the Director-General and under Conditions 57, 59 and 60 the Director-General is given various functions in respect of the process of independent monitoring of noise and dust.

(vii) Condition 61 requires the applicant to prepare a Water Management Plan to the satisfaction of the Director-General and under conditions 63 and 65 the Director-General is given additional functions in monitoring conditions of groundwater and surface water including floodpath channels and wetland areas.

(viii) Conditions 92 and 93 impose functions on the Director-General in respect of compliance reporting by the applicant including the power of the Director-General to issue instructions requiring compliance to the satisfaction of the Director-General.

(ix) Condition 94 requires the applicant to provide six monthly environmental monitoring reports for the first three years of the project or for such further period “as may be determined necessary by the Director-General”.

(x) Condition 99 confers upon the Director-General a “dispute resolution function in the event of a disagreement between the applicant, an individual the Council or a government agency.

(xi) Condition 100 confers various functions upon the Director-General in respect of the creation and operation of a Community Consultative Committee.

(xii) Condition 108 confers various functions upon the Director-General in respect of independent environmental audits of the approved development and Conditions 109 and 110 confer additional functions on the Director-General in respect of those audits including the power to impose “reasonable requirements for compliance with this consent”.

(xiii) Condition 112 requires the applicant to submit details of any revisions of the mine plan contained in the EIS and empowers the Director-General to require the applicant to submit a modification application in accordance with the provisions of the EP&A Act in respect of such revised mine plan.

92. Having identified the multiple functions imposed upon the Director-General by the conditions of the development consent the Respondents’ submission that within the overall spectrum of functions imposed upon the Director-General, the functions conferred upon the Director-General by Condition 67 are merely “advisory” and non-legally enforceable obligations is clearly untenable. The functions imposed upon the Director-General by Condition 67, are in common with the other functions I have identified, self evidently important facets of the Minister’s deliberately imposed regime for the administrative and environmental supervision by the Director-General of the implementation of the conditions of the development consent. There is simply no justification for regarding Condition 67 in a different light from the entire suite of functions that are imposed upon the Director-General by the conditions of the development consent.

93. Whereas many of the relevant conditions imposing functions on the Director-General are conditions imposing primary obligations on the applicant to do things “to the satisfaction of the Director-General” or to comply with the requirements given by the Director-General, there are others which impose primary obligations on the Director-General, particularly in terms of environmental supervision and management of the ongoing development.

94. Condition 67 as a matter of form and structure is not unique in the overall spectrum of conditions imposing functions on the Director-General. In particular, it is to be noted that the following conditions under the heading “Independent Environmental Audit” adopt a similar structure and impose similar functions on the Director-General as does Condition 67:

108. Prior to the completion of mining of each mining zone and prior to commencing mining in accordance with an approval under s138 of the Coal Mine Regulation Act, 1982 of the next mining zone, and at any additional time as the Director-General may direct, the Applicant shall arrange for an independent environmental audit of the development. The audit shall be conducted pursuant to ISO 14010—Guidelines and General Principles for Environmental Auditing, ISO 14011—procedures for Environmental Auditing (or the current versions) and any specifications of the Director-General. The Applicant shall submit six copies of the report to the Director-General, who shall provide a copy to the EPA, DLWC, DMR, the Council and the Community Consultative Committee.

109. The audit shall:

(i) assess compliance with the requirements of this consent, licences and approvals;

(ii) review the effectiveness o the environmental management of the mine, including any mitigation works;

(iii) be carried out at the Applicant’s expense; and

(iv) be conducted by a duly qualified independent person or team approved by the Director-General in consultation with the Council.

110. The Director-General may, after assessing compliance in accordance with this consent and after considering any submission made by the EPA, DLWC, DMR, the Council or the Community Consultative Committee on the report, notify the Applicant of any reasonable requirements for compliance with this consent. The Applicant shall comply with those requirements within such time as the Director-General may require.

95. Once the true nature and effect of the Director-General’s functions under the conditions of the development consent are appreciated (in the manner that I have earlier analysed them) the Respondents’ argument based upon the lack of competence in terms of the EP&A Act, s 80A for a condition of development consent to “impose obligations on a third party to the development consent” is at once seen to be legally and factually irrelevant to the decision called for in the present case. The Director-General’s functions under the conditions of the development consent are clearly undertaken on behalf of the Minister who granted the development consent for the legitimate purpose of properly supervising and implementing the conditions of development consent imposed by the Minister.

96. To describe any of those functions (including the functions imposed by Condition 67)as not being intended to create any legally enforceable obligation but only intended to operate as “advisory” content is, I must say, an extraordinary submission made on behalf of the Respondents, particularly in view of their key statutory responsibilities under the EP&A Act—see ss 7, 13 and 15. It can only be understood as a legal argument (which in my view is so strained to the point of being self-evidently untenable) which bears little relationship to the more realistic perception of the matters made by the Senior Executives of the Department as is revealed in the Departmental Memorandum from the Executive Director to the Director-General (Exhibit B) which includes the following opening paragraphs:

BACKGROUND

· Mandalong Valley Mine, formerly known as the Cooranbong Colliery Life Extension Project, is an extension of existing underground coal mine workings in an area where the natural topography of the Valley is relatively flat leading the floodplain to be flood prone. The Environmental Impact Statement for this project identified that any mining related subsidence would affect the drainage routing and flooding of low lying areas. Consequently, longwall mining is anticipated to be potentially difficult and hazardous.

· Both the Minister and you have recently received a number of representations from the Mandalong Progress Association questioning the Department’s implementation of the Conditions of Consent that relate to the flood risk across the valley for the Mandalong coal mine.

· The issue has been debated by the community ever since the Minister gave consent in late 1998. Not withstanding, I consider that all reasonable steps have been taken to satisfy the relevant conditions of consent, it is appropriate now to re-validate the outcomes in the light of the community’s assertions that the steps taken to satisfy the conditions are inadequate.

· The dominant Condition requiring action by the Department is Condition 67 which states that (The Text of Condition 67 is here quoted):

· This briefing seeks your endorsement for the approach that has been followed on the basis of the review that has been conducted by the Department on the implementation of the flood risk characterisation requirements of this Condition. Expert legal advice was obtained as part of this review from Mr Brian Preston SC, which was based on the description of the issues involved and the questions considered salient as outlined in the briefing note for Mr Preston….

97. In my judgment, that extract far more accurately and aptly captures the true nature and effect of the Director-General’s functions under Condition 67 of the development consent than do the legal submissions advanced on behalf of the Respondents in the present case.

98. In view of my conclusion as to the true nature and effect of the functions imposed upon the Director-General by the conditions of the development consent (including Condition 67) no serious question truly arises as to whether condition 67 in particular exceeds the scope and ambit of a condition competently imposed pursuant to s 80A of the EP&A Act (or its pre 1998 counterparts namely ss 91, 91AA and 91AB that were applicable to the development consent granted by the Minister pursuant to s 101(8) and (11) as continued in force by the savings and transitional provisions contained in the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998).

99. Clearly, the conditions of the development consent imposing functions on the Director-General in the proper administration, supervision and implementation of the conditions imposed by the Minister in granting the development consent were within the competence of the power for the Minister to impose conditions on the grant of development consent. Accordingly, no occasion here arises for reading down pursuant to the Interpretation Act 1987, s 32 the conditions imposing functions on the Director-General (and condition 67 in particular) so that they only operate within the ambit of the relevant power, as was submitted on behalf of the Respondents.

100. The alternate basis for the Respondents’ submission that Condition 67 was not intended to create any legally enforceable obligation on the part of the Director-General was said to be analogous to the application of the rule of construction that not every breach of condition invalidates the exercise of statutory power, that is exemplified in the decision of the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.

101. In my judgment, there is little or no scope for the application to the present case, by analogy or otherwise, of the decision in Project Blue Sky.

102. The question discussed in Project Blue was formulated by the majority judgment at 388/389 in the following terms:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied

(1877) 2 PD 203 at 211, per Lord Penzance.; there is not even a ranking of relevant factors or categories to give guidance on the issue.

103. Although the majority judgment concluded at 392 that “…the best interpretation of s 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid” the majority judgment concluded with the following statement at 393:

Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision

(NZ) [1955] NZLR 271 at 281;

[917] AC 170 at 175. That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and , in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.

104. Accordingly, and although in truth there is nothing in the present case that is analogous to Project Blue Sky, the Respondents’ attempted invocation of some analogical principle to that decision would not, in any event, have avoided the legal consequence of a breach by the Director-General of Condition 67 being nonetheless “unlawful” and therefore susceptible to appropriate judicial remedy.

105. I should note that one of the Respondents’ supporting arguments was that the Minister in imposing functions on the Director-General under the conditions of the development consent could not have intended to expose her to the criminal liability created by s 125(1) for “failing to do what the Minister has directed to be done”.

106. However, this argument overlooks s 125(3) which provides that nothing in subsection (1)…. “applies to a direction given under the Act by the Minister to a public authority” where the EP&A Act, s 4(1) defines “public authority” as meaning, inter alia,

……………..

……………..

(d) a chief executive officer within the meaning of the Public Sector Management Act 1988 (including the Director-General).

107. For all the foregoing reasons, I reject the Respondents’ submissions that the functions imposed upon the Director-General by Condition 67 of the development consent were not intended to create any legally enforceable obligation. Accordingly, I reject the Respondents’ ultimate submission that the Applicant’s claim of breach by the Director-General of Condition 67 is not a justiciable claim.

108. For all the foregoing reasons, I hold that the Applicant’s claim of an alleged breach by the Director-General of Condition 67 is relevantly a “breach by this Act” within the extended meaning of that expression (s 122b(iii)) which if substantiated, is capable of supporting an order pursuant to s 124(1) directing the Director-General to remedy that breach.

109. Accordingly, I hold (i) that the Applicant’s claim in the present case falls within this Court’s jurisdiction (under the LEC Act, s 20(1)(c)) and (ii) that the claim is a justiciable claim: vide the EP&A Act, ss 122, 123 and 124.

110. These conclusions mean that it has not been necessary for me to explore other sources of jurisdiction available to this Court to entertain the Applicant’s claim. In passing, I would merely observe that although the Court’s civil enforcement jurisdiction conferred by the LEC Act, s 20 is self-evidently wide, the particular jurisdiction invoked in the present case, namely s 20(1)(c) itself confers a very broad jurisdiction of civil enforcement to restrain or remedy a breach of the EP&A Act, being akin to a statutory enactment, of the broad jurisdiction of a court of equity “to grant equitable relief to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto”: per the joint judgment of the High Court in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 144 but in circumstances where that jurisdiction is considerably broadened by the extensions to the concept of “breach of the Act” created by s 122 and is more widely invocable by virtue of the open standing provided by s 123. (See also Stubbs v NRMA Insurance Ltd (1997) 42 NSWLR 550 at 556 per Mason P).

111. Having effectively rejected the Respondents’ objections that the Applicant’s claim is not justiciable and is beyond this Court’s jurisdiction, it remains for me to consider whether the Applicant has proven a relevant breach by the Director-General of Condition 67, on the basis that “breach” relevantly means “a failure to comply” without necessarily involving any concept of fault on the part of the Director-General.
C. HAS THERE BEEN A BREACH OF CONDITION 67 BY THE DIRECTOR-GENERAL?

112. It is to be noted that the evidence tendered on his issue was entirely documentary. Accordingly, the Court must determine this factual dispute upon the basis of the documentary materials and the inferences available from the primary facts established by the documentary evidence.

113. Included in the documentary material is the Report of the Commission of Inquiry appointed by the Minister into the environmental aspects of the proposed development conducted pursuant to the EP&A Act, s 119 (Exhibit 3).

114. That Report recommended to the Minister that development consent be granted subject to the conditions contained in the Report. In furnishing the Minister with his Report, the Commissioner Dr Carleton had stated, inter alia:

The evidence is that significant mine subsidence related impacts will result to local landowners. However, stringent consent requirements, including independent review options to protect landowners, will ensure that impacts are controlled. Otherwise mining will not proceed, or acquisition, compensation or other arrangements will be required to the landowner’s satisfaction.

115. This statement is amplified by the following extract from the Executive Summary to the Report:

Subsidence and Flooding

The evidence is that predicted mine subsidence will not increase flood levels, flood extent or flood hazard. Mining and flood prone land has not been previously undertaken in NSW (and possibly Australia) to the degree proposed by Powercoal. Responsible agencies and consultants therefore call for caution.

A large part of the mine area is a relatively flat floodplain subject to frequent and extensive flooding (almost every year for nuisance flooding). Predicted subsidence after mining will generally reduce the extent of flood prone land and flood affected dwellings for major flood events in the Mandalong Valley. Mine subsidence will not increase flood levels in the short term, as the subsidence will increase the flood storage. However, certain individual properties may be more prone to flooding as a result of subsidence, and as a consequence, acquisition or other negotiations acceptable to the owners will be necessary before mining under the property. Minor road reconstruction and drainage works, as well as an Applicant assisted Flood Management Study should generally provide greater flood protection and flood hazard reduction for the affected local community.

116. That extract from the Executive Summary reflects the Commissioner’s comments at the end of the Chapter of his Report dealing with the subject of “Flooding Impacts”.

117. In this respect, it should be noted that one of the recommended conditions was Condition 66 which is an earlier version (to similar effect) of Condition 67 as ultimately imposed by the Minister.

118. This background material indicates that Condition 67 was conceived of as part and parcel of the recommended regime “to provide greater flood protection and flood hazard reduction for the affected local community”. It is self-evidently an important matter of substance.

119. The Applicant’s allegation of breach by the Director-General of Condition 67 is that the flood study required to be prepared has not been fully prepared, in that only a part of the required study was prepared whereupon the Director-General decided not to proceed further with the study.

120. In disputing this allegation, the Respondents contend that the Director-General was entitled to conclude that the required flood study had been prepared, even though its preparation was confined to the Stage 1 Brief, given to the Consultant and did not proceed to Stages 2 and 3 as had been originally contemplated when the study was commissioned by the Director-General.

121. The documentary materials clearly establish the following primary facts—

(i) The Director-General in October 1999 commissioned a consultant, Water Research Laboratory, to undertake the required flood study in three progressive stages—Stage 1 involving consultation and data acquisition, Stage 2 involving the review of hydrologic and hydrodynamic modelling and Stage 3 involving the determination of the one in 100 year flood event;

(ii) Thereafter, the Director-General notified the Consultant that the scope of work had been clarified with a revised flow chart outlining the tasks contemplated in Stages 1, 2 and 3 with the advice that Stage 2 works would be reviewed and revised (where necessary) as a result of the Stage 1 Report and that the Stage 3 scope of works would be reviewed and revised (where necessary) following submission of the Stage 2 Report.

(iii) In June 2000, the Consultant presented his Stage 1 Report to the Director-General.

(iv) In August 2000, the Consultant submitted to the Director-General a detailed submission and quote for undertaking further successive stages of the flood study with Stage 5 involving the determination of the one in 100 year flood event.

(iv) On 19 March 2001, the Department’s Executive Director wrote to the Chairman of the Community Consultative Commission “outlining the position of this Department in relation to the flood survey conducted in accordance with Condition 67…” The letter, after stating the effect of advice received from the Consultant, continued—

The independent consultant clearly advised DUAP that there was evidence to suggest there was an increased flood risk from mining in the Valley. He did, however, recommend improvements to the location of the monitoring sites to improve the predictability of the dataset. DUAP concluded that Powercoal should therefore re-run the model progressively throughout the life of the mine, as and when the specific patterns of longwalls become known, to ensure that the risks were minimised at all times.

The emphasis of the review was on verifying the hydrologic and hydrographic impacts of the mine, and did not extend to developing the 1 in 100 year flood level in the Mandalong Valley. This issue was discussed with the Lake Macquarie City Council Floodplain Management Committee in December 2000, which advised that it did not propose to prepare a Floodplain Management Plan for the Manadalong Valley in the foreseeable future. DUAP considers that the intent of Condition 67 is to provide flood information for incorporation into a Floodplain Management Plan by virtue of Condition 111 of the Consent.

Given that a Floodplain Management Plan is not currently proposed, the value of developing the 1:100 year flood level at this point in time is considered to be limited. If and when the Committee chooses to proceed with such a plan, then Powercoal will be requested to provide the contemporary stream flow monitoring data it holds at that time together with the most accurate picture of its proposed mining pattern. This will ensure that the most contemporary risk analysis will be conducted.

(vi) On 12 April 2001, the Chairman of the Community Consultative Council responded to the Department’s letter of 19 March 2001 noting that the Committee at its most recent meeting had noted with concern that the Department “was seeking to abandon the flood Study required by Condition 67” and calling upon the Department to complete the flood study as a matter of urgency.

(vii) Thereafter sustained protests from the Community Consultative Committee, the Progress Association and the Lake Macquarie Council were directed to the Department and to the Minister calling for the urgent completion of the flood study. The latter’s Media Release issued on 4 September 2001 advising of the Minister’s decision to modify Conditions 13, 18 and 22 of the development consent included the following statement concerning the flood study:

In addition, Dr Refshauge reassured the community about the mine’s potential effect on flooding in the Mandalong Valley.

I acknowledge that some residents in the Mandalong Valley remain concerned about the potential impacts of subsidence and its effects on flooding, said Dr Refshauge.

I have instructed the Department to consider this matter further in consultation with the local community and to commission further studies to characterise the flood risk in the Mandalong Valley, added the Minister.

(viii) It was in these circumstances of ongoing protests against the Department’s decision not to proceed any further with the flood study that the Department’s Executive Director wrote the memorandum to the Director-General that I have earlier referred to (see par 94). I infer that it was not until this point of time that the Director-General had personally become involved in the Department’s decision not to proceed further with the flood study (meaning by that, that the earlier decisions taken in respect of Condition 67 had been taken by the Director-General’s subordinates). Thus, the memorandum expressly sought the Director-General’s endorsement of the approach that had been followed by the Department in respect of Condition 67. Rather than summarise the contents of the memorandum, I should quote its content in full (noting that I have earlier quoted (par 96) the “Background” component of the memorandum which immediately preceded the following content):

DISCUSSION

In response, to the Condition, the Department took certain steps in the period February 1999 to July 2000. These, and the manner in which they are considered to satisfy the requirements of the Condition are as follows:

1. Condition No. 67 requires the Applicant to participate in and contribute funds to the preparation of a flood study. Powercoal contributed $30,000 to a flood study and collaborated with the Department during the design of the study.

2. The Condition No. 67 requires the study to be set up to determine the 1:100 year flood, and other such matters considered necessary in consultation with Council and DLWC. The study was designed to determine the 1:100 year flood and to provide information about subsidence effects. Lake Macquarie City Council (the Council in the Condition) and the Department of Land and Water Conservation (DLWC) were consulted in the design and implementation of the study on multiple occasions. Mr Preston emphasised that neither was required to sign off on the stud but merely to be consulted.

3. Condition No. 67 requires the Director-General to select a consultant to conduct the flood study. The Director-General commissioned an independent expert consultancy, Water Research Laboratory (WRL) of the University of New South Wales. The objects of the study were is (sic) accordance with the Condition

4. The study was to be completed within 6 months of the date of consent. This time frame proved to be unrealistic and was not met. Mr Preston has indicated that these time provisions can be considered directory and not mandatory, because action had been clearly initiated through the study.

5. The amount of reasonable funding required from the Applicant was determined as indicated under 1

6. Definition of the flood hazard included an extensive public consultation and submission process that was managed by the consultant, WRL.

7. The study is to include a public consultation and submission process. Public consultation has been extensive and has continued throughout the period since Approval was given.

8. The Condition requires that the results of the study be incorporated into a revision of the Water Management Plan. The Department received a Water Management Sub Plan in September 1999 and this was subsequently approved by the Department. In doing so, the Department determined that the Plan was consistent with the findings of the flood study.

9. The study was undertaken to the satisfaction of the Director-General and its report made available to the DLWC, Council and the Community Consultative Committee in June 2000. In addition, briefing sessions were held by the Department with the Consultative Committee and the Council.

10. It is argued that the requirements of the Condition have been completely satisfied by the steps described above. Advice from Mr Preston confirms that the Director-General has the discretion to decide upon the nature of the studies that are to be carried out, so long as the other tests stipulated by the Conditions are met.

11. During the study by WRL, the consultant indicated that it was unlikely that the modelling conducted for the EIS would be varied by this work unless there had been a major error in the original data processing. Also, in August 2001, modified Consent Conditions were approved and these recognised that the location and configuration of longwalls would not be known with any accuracy until closer to the time mining would commence. Consequently, the Director-General concluded that continuation of this study would be a misuse of public funds and the study was terminated.

RECOMMENDATION

That the Director-General form the opinion that the response by the Department the requirements specified in the Conditions of Consent relating to the characterisation of the flood risk for the Mandalong Mine, is appropriate for compliance with the Condition to be considered to have been achieved.

The memorandum bears the endorsement of the Director-General (dated 9 April 2002) approving the recommendation.

122. It is upon the basis of the foregoing primary facts as disclosed by the documentary evidence that I must determine the Applicant’s allegation of breach by the Director-General of Condition 67.

123. That allegation is that the flood study required to be prepared has not in fact been prepared.

124. Accordingly, it is first necessary to determine what precisely does Condition 67 require of the flood study. It is clear beyond argument that Condition 67 requires the flood study to achieve the following objects—

(i) to determine the 1:100 year flood; and

(ii) to determine such other matters relating to long term flooding as considered necessary by the Director-General in consultation with Lake Macquarie Council and the Department of Land and Water Conservation to implement the conditions of the consent; and

(iii) to further define the existing flood hazard and the potential flood hazard resulting from mining; and

(iv) to include a public consultation and submission process.

125. The effect of the “note” to Condition 67 is to distinguish the required flood study from the “flood-plan management study” referred to in Condition 111.

126. Condition 111 is in the following terms—

The Applicant shall assist in the development of a Floodplain Management Plan to council’s satisfaction, based on predicted subsidence changes with the aim of reducing flooding impacts, flood hazard and improving general community flood protection.

127. Having determined, as a matter of construction, the nature and scope of the required flood study, a further potentially important question arises concerning the extent of any relevant discretion that is conferred upon the Director-General by Condition 67.

128. Clearly, the Condition confers upon the Director-General the following elements of discretion—

(i) to decide, in consultation with other nominated agencies, what matters “relating to long term flooding” (other than (i) the determination of the 1 in 100 year flood; and (ii) the further definition of the existing flood hazard and the potential flood hazard resulting from mining) should also be determined by the flood study;

(ii) to select the Consultant to prepare the flood study;

(iii) to manage the flood study;

(iv) to determine the satisfactory amount of reasonable funding towards the flood study required to be contributed the applicant; and

(v) to determine the satisfactory completion of the flood study.

129. Having determined the nature and extent of the elements of discretion conferred upon the Director-General, the crucial question that arises in the present case is whether the exercise of any aspect of that overall discretion may legitimately result in a reduction or elimination of any of the required stipulated content of the flood study, that has been earlier identified. In particular, does the discretion concerning the Director-General’s “satisfaction with the completion” of the Study enable the Director-General to change the required content of the flood study so that it need not determine the 1 in 100 year flood and/or provide the further definition of existing and potential future flood hazards resulting from the mining? Again, does the Director-General’s discretion ‘to manage the flood study” empower her to determine that “continuation with the flood study is inappropriate at this time” etc or would involve “a misuse of public funds”.

130. These questions arise because it is clear on the basis of the primary facts, and I so find, that the Stage 1 of the flood study undertaken by the Consultant does not satisfy the requirements of the Condition “to determine the 1 in 100 year flood” and “to further define the existing and potential future flood hazards resulting from mining” and that the Director-General had determined not to continue with the flood study (beyond the Stage 1 Report) because in her opinion, to proceed further (eg in accordance with the contemplated stages 2 and 3) would involve either “a misuse of public funds” or otherwise be “inappropriate”.

131. In my judgment, the proper construction of Condition 67 is one that while recognising the elements of discretion conferred upon the Director-General, does not allow those discretions to dispense with, or derogate from, the fundamental requirement that the flood study (i) determine the 1 in 100 year flood; and (ii) further define the existing flood hazard and potential future flood hazard resulting from mining.

132. In other words, it is clear that the real object and the true effect of Condition 67 is to require the preparation of the flood study to achieve the expressed objectives of that study. This is the obvious and prime effect of Condition 67 and the conferral upon the Director-General of the various elements of discretion are all ancillary and incidental to that fundamental object.

133. Upon the basis of the foregoing construction of Condition 67 and combined with my aforesaid factual conclusions by way of inferences drawn from the primary facts, the ultimate and inevitable conclusion is that the Director-General has failed to comply with the functions imposed upon her by Condition 67 in respect of the preparation of the required flood study.

134. This conclusion is simply unaffected by considerations advanced on behalf of the Respondents to the effect that it was reasonably open to the Director-General to determine not to continue with the flood study beyond the Stage 1 Report received from the Consultant because she considered that to proceed further would involve a misuse of public funds or that it would be otherwise inappropriate because of the modifications made to conditions 13, 18 and 22 of the development consent.

135. The reasons why the Respondents’ submissions on this point are unavailing is that in proceedings such as the present proceedings, it must be a question for the Court to determine whether on the available evidence, there has been a breach of the Act, such as is alleged in the present case in respect of the functions imposed upon the Director-General by Condition 67.

136. In so concluding, I venture to repeat what I said at pars 68 and 69 in Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34 at 53:

In my respectful opinion, when proceedings brought in this Court (such as the present proceedings) challenging the validity of administrative actions, are truly and rightly conceived to be claims

, the adjudication that is required of the Court, must invariably and inevitably be whether or not there has been established a relevant breach or threatened breach of the law, as alleged in the proceedings, and where objective facts are crucially or essentially involved in the alleged breach (such as in the present case) this Court obviously must determine for itself the existence or non-existence of such facts, on the basis of the available evidence. In such circumstances, the conclusion must invariably be that the facts are jurisdictional facts.

Indeed, it is the very creation, in the same statute, pursuant to which the impugned administrative action is taken, of specialist jurisdiction vested in the Court to restrain or remedy a “breach” (or threatened breach) of the statute that is, in my opinion, a powerful legislative indication that it is intended that this Court must determine for itself, whether or not there has been a relevant breach of the statute, rather than to leave that question to the decision of the very administrative agency whose action (or inaction) is the basis for the allegation of breach of the statute . There is something fundamentally anomalous and unsatisfying in the view that the question of whether an administrative agency has relevantly breached the law, is to be answered according to the opinion held by that agency (subject albeit to the judicial review of that opinion).

D. CONCLUSIONS

137. For all the foregoing reasons I find that the Director-General has breached Condition 67 of the development consent, that that breach is relevantly a breach of the EP&A Act (s 122(b)(iii)) and that breach is capable of being remedied by a order made pursuant to the EP&A Act, s 124(1).

138. It is appropriate that I invite the parties to bring in draft short minutes within 7 days to give effect to my conclusions so that final orders may be made in the proceedings.

139. In the meantime the exhibits are to be returned and the question of costs is reserved.

-----------------------OoO---------------------

I HEREBY CERTIFY THAT THE PRECEDING 139 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD.

CITATION:	Mandalong Progress Inc. v Minister For Planning And Anor. [2003] NSWLEC 141
PARTIES:	APPLICANT: Mandalong Progress Inc. RESPONDENTS: Minister For Planning And Anor.
FILE NUMBER(S):	40510 of 2002
CORAM:	Bignold J
KEY ISSUES:	Development Consent :- alleged breach of condition by Director-General-whether claim is justiciable as a breach of the Act.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 122, s 124
CASES CITED:	Building Owners and Managers Association of Australia v Sydney City Council (1984) 53 LGRA 54; Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 144; F Hannan Pty Ltd v Electricity Commission of NSW No (3) (1985) 66 LGRA 306; Port Stephens Council v Fidler (1997) 94 LGERA 298; Rao v Canterbury City Council (2000) 112 LGERA 360; Sydney City Council v Building Owners and Managers Association (1985) 2 NSWLR 383; Payne v Mosman Municipal Council (2000) NSWLEC 25; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Sahade v Mosman Municipal Council (2000) NSWCA 251; Stubbs v NRMA Insurance Ltd (1997) 42 NSWLR 550
DATES OF HEARING:	17-19/02/03, 25/02/03, 04/03/03, 12/03/03
DATE OF JUDGMENT:	06/18/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr N Cotman SC with Mr Raphael, Barrister SOLICITORS The Hargraves Practice RESPONDENTS: Mr B Preston SC with Ms J Jagot, Barrister SOLICITORS Ms C Hanson, Solicitor Department of Urban Affairs and Planning