Millers Point Fund Incorporated v Lendlease (Millers Point) Pty Ltd

[2016] NSWLEC 166

Land and Environment Court

New South Wales

Medium Neutral Citation:

Millers Point Fund Incorporated v Lendlease (Millers Point) Pty Ltd [2016] NSWLEC 166

Hearing dates:

15 and 16 November 2016

Date of orders:

23 December 2016

Decision date:

23 December 2016

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at paragraph [265]

Catchwords:

JUDICIAL REVIEW – request to modify Barangaroo concept plan – whether PAC correctly construed Casino Control Act 1992 – whether PAC properly exercised its powers, duties and functions under s 75W of the Environmental Planning and Assessment Act 1979

 

JUDICIAL REVIEW – request to modify Barangaroo concept plan – whether PAC correctly construed Casino Control Act 1992 – whether PAC took into account irrelevant considerations in contravention of s 75W of the Environmental Planning and Assessment Act 1979

 

JUDICIAL REVIEW – development application to construct Crown Casino Hotel Resort in Barangaroo – whether contingent on the modification of the Barangaroo concept plan

JUDICIAL REVIEW – development application to construct Crown Casino Hotel Resort in Barangaroo – whether PAC took into account irrelevant consideration in contravention of s 79C of the Environmental Planning and Assessment Act 1979

Legislation Cited:

Barangaroo Delivery Authority Act 2009 (NSW) s 6
Casino Control Act 1992 (NSW) ss 3, 4, 4A, 5A, 6, 7, 18, 19, 19A
Casino Control Amendment (Barangaroo Restricted Gaming Facility) Act 2013 (NSW)
Constitution Act 1902 (NSW) ss 5, 9A
Environmental Planning and Assessment Act 1979 (NSW) ss 5, 23, 75O, 75F, 75I, 75J, 75M, 75W, 79C, 89C, 89D, 89E, 89H, Sch 6A, cll 2, 3, 3B
Gaming and Liquor Administration Act 2007 (NSW) ss 6, 14
Income Tax and Social Services Contribution Assessment Act 1936 (Cth) s 6
Interpretation Act 1987 (NSW) s 21
Migration Act 1958 (Cth)
Motor Vehicle Accidents Act 1988 (NSW) s 3
Protection of the Environment Operations Act 1997 (NSW) s 323
Protection of the Environment Operations (Waste) Regulation 2014 (NSW)
Road Rules 2014 (NSW)
Road Transport Act 2013 (NSW) s 23
State Environmental Planning Policy (State and Regional Development) 2011 (NSW) Sch 2, cll 3 and 8
State Environmental Planning Policy (State Significant Precincts) 2005 (NSW)
State Environmental Planning Policy Amendment (Sydney Harbour) 2016 (NSW) cll 4 and 5, Sch 2
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (NSW)

Cases Cited:

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26

 

Anderson v Director General, Department of Environment and Climate Change (2008) 163 LGERA 400; [2008] NSWCA 337

Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council (2008) 168 LGERA 239; [2008] NSWLEC 284
Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275
Billinudgel Property Pty Ltd v Minister for Planning [2016] NSWLEC 139
Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226
Boulton v Burwood Municipal Council (1988) 66 LGRA 131
FAI Insurances Ltd v Winneke (1981-1982) 151 CLR 342
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628
Haughton v Minister for Planning (2011) 185 LGERA 373; [2011] NSWLEC 217
Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257
Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333; [2007] NSWCA 38
Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402; [1999] NSWLEC 157
MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59; [2006] NSWLEC 581
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; [2015] FCAFC 133
Norvill v Chapman (1995) 57 FCR 451
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Saraswati v R (1991) 172 CLR 1
Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd (2016) 216 LGERA 40; [2016] NSWLEC 6
Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255
Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112; [2009] NSWCA 390

Texts Cited:

Macquarie Dictionary

Category:

Principal judgment

Parties:

Millers Point Fund Incorporated (Applicant)
Lendlease (Millers Point) Pty Ltd (First Respondent)
Sydney Harbour Foreshore Authority (Second Respondent)
Crown Sydney (Property) Pty Ltd (Third Respondent)
Barangaroo Delivery Authority (Fourth Respondent)
Minister for Planning (Fifth Respondent)

Representation:

Counsel:
M R Hall SC, C Lenehan and J Taylor (Applicant)
N Williams SC and S J Free (First Respondent)
R Lancaster SC and M J Astill (Third Respondent)
I R Pike SC and Z Heger (Fourth Respondent)
R C Beasley SC and B Lim (Fifth Respondent)

  Solicitors:
EDO NSW (Applicant)
Addisons (First Respondent)
Ashurst (Third Respondent)
Clayton Utz (Fourth Respondent)
Department of Planning and Environment (Fifth Respondent)

File Number(s):

2016/00229433

Judgment

1. This matter concerns the proposed Crown Casino Hotel Resort that was approved by the Planning Assessment Commission (‘PAC’) for development on 28 June 2016 in the area known as Barangaroo on the Sydney Harbour foreshore.

2. The applicant, Millers Point Fund Incorporated (‘applicant’), contends that whilst the PAC was considering the relevant modification request and development application, it misconstrued both:

1. the Casino Control Act 1992 (NSW) (‘CC Act’), insofar as the PAC determined that the NSW Parliament (and in some instances NSW Government) had determined the location of the building which would comprise the Barangaroo Restricted Gaming Facility (the legal name for the building that would become the Crown Casino Hotel Resort under the CC Act) (‘Barangaroo RGF’); and

2. the impact of the CC Act on the PAC’s powers, duties and functions under the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’), insofar as the PAC concluded that it was restrained from considering the merits and demerits of alternate locations for the building that would become the Barangaroo RGF.

3. As such, the applicant alleges that the PAC has made errors of law which amount to jurisdictional error because it failed to properly exercise its jurisdiction, took into account irrelevant considerations, failed to comply with conditions upon which the powers are conferred upon it by the EPA Act or any combination of these errors.

4. This has led to the applicant bringing Class 4 proceedings against a number of respondents, including:

1. Lendlease (Millers Point) Pty Ltd, which is the first respondent and the commercial entity primarily responsible for the development of the southern end of Barangaroo, where the Barangaroo RGF is proposed to be built;

2. the Sydney Harbour Foreshore Authority, the second respondent, which did not appear in these proceedings;

3. Crown Sydney (Property) Pty Ltd, which is the third respondent and the proponent for the State Significant Development application for the building which is proposed to become the Barangaroo RGF;

4. the Barangaroo Delivery Authority, the fourth respondent, which is a statutory corporation created pursuant to s 6 of the Barangaroo Delivery Authority Act 2009 (NSW) for the purpose of organising the development of Barangaroo generally; and

5. the Minister for Planning, the fifth respondent and the deemed consent authority, who has delegated this authority to the PAC.

5. The four respondents that appeared at the hearing all took the position that the PAC had not misconstrued the CC Act or its impact on the PAC’s powers, duties and functions under the EPA Act, and that there had therefore been no jurisdictional error.

6. I find that the applicant has not made out any of the four grounds of challenge outlined in paragraphs 70 and 71 below. As such, the proceedings should be dismissed.

Background

7. The facts that form the basis of these proceedings are largely agreed between the parties, and given their complexity should be set out at length.

8. These proceedings arise out of separate but interrelated proposals by the first respondent to modify a concept plan and modify various State Environmental Planning Policies, and by the third respondent to undertake a State significant development. In particular:

1. the first respondent sought approval to amend the concept plan that applied to Barangaroo, so that a building (known as either “Block Y” or “the landmark hotel”) could be relocated from its earlier approved position on a pier over Sydney Harbour onto land that had previously been allocated for public use, and allow that building, in effect, to become the Barangaroo RGF;

2. the third respondent sought approval to construct Block Y (and as such the Barangaroo RGF) at this new location as a State significant development (‘SSD Application’); and

3. the first respondent sought amendment of each of the State Environmental Planning Policy (State Significant Precincts) 2005 (NSW) (‘State Significant Precincts SEPP’), State Environmental Planning Policy (State and Regional Development) 2011 (NSW) (‘State and Regional Development SEPP’) and Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (NSW) (‘Sydney Harbour SREP’), which would, amongst other things, rezone the land on which the proposed Block Y (and as such the Barangaroo RGF) was to be constructed from “RE1 – Public Recreation” to “B4 – Mixed Use”, as well as increase the maximum gross floor area (‘GFA’) and maximum building height in the same location (‘Proposed SEPP Amendments’).

9. I will outline each of these in turn.

Concept Plan modification

10. On 9 February 2007, the then Minister for Planning approved concept plan MPA No. 06_0162, which related to the development of the area known as Barangaroo on the Sydney Harbour foreshore pursuant to s 75O of Pt 3A of the EPA Act (‘Concept Plan’). Amongst other things, the Concept Plan divided Barangaroo into three regions for the purposes of the development, being Headland Park, Barangaroo Central and Barangaroo South.

11. The developments which form the basis of these proceedings are all located within Barangaroo South. For clarity, Barangaroo South is bordered by Sydney Harbour to the west, Hickson Road and Sussex Street to the east, Central Barangaroo to the north, and the King Street Wharf complex and Shelley Street to the south.

12. Since its initial approval, the Concept Plan has been the subject of seven modifications, the latest being known as “MOD 7”. Whilst it is not necessary to outline the changes made as a result of each modification, it is noted that the Concept Plan as modified by each of the modifications up to and including MOD 7 provided approval for:

1. a mixed use development in Barangaroo South involving a maximum of 563,965 square metres of GFA;

2. a concept plan layout which provided for Block Y to be situated on a pier over Sydney Harbour; and

3. contiguous public parkland along the length of the foreshore of Barangaroo South, which would join to similar parkland in Barangaroo Central and Headland Park.

13. Independently of the seven modifications, a review of the Barangaroo development was commissioned by the NSW Government in 2011, and undertaken by Meredith Sussex and Shelley Penn (‘Sussex-Penn Review’). This review recommended that Block Y should not be built on the pier over Sydney Harbour as proposed in the (then current) Concept Plan, as this was “not good public policy”. Rather, the Sussex-Penn Review recommended that the first respondent, as the proponent, request a modification of the Concept Plan that would move Block Y onto the main part of the Barangaroo South site as a “significant demonstration of goodwill”.

14. On 21 June 2013, the Crown Group of companies (which includes the third respondent) lodged an unsolicited proposal with the NSW Government to establish and operate a hotel resort at Barangaroo South, which would include what was described as “VIP Gaming” facilities. On or around 11 November 2013, the NSW Government entered into a contract with a number of companies that form the Crown Group (again including the third respondent) regarding the development of this hotel resort (‘Framework Agreement’).

15. On or around 17 March 2014, a representative of JBA Urban Planning Consultants, a company retained by the first respondent (‘JBA’), wrote to the Director-General of the Department of Planning and Infrastructure (‘Department’) outlining the proposed eighth modification of the Concept Plan (‘MOD 8’). Amongst other things, the proposed MOD 8 was to involve relocating Block Y, which was “currently approved on a public pier extending into the harbour” onto a site located on land zoned “RE1 – Public Recreation” to the west of a number of proposed residential towers, as well as increase its total maximum GFA. The letter states that the proposed modification does not seek to reduce the total area of the public domain, but rather redistribute its locations. As detailed further below, the letter also recognised that the proposed MOD 8 would require the Proposed SEPP Amendments to occur before such a modification would be permissible.

16. The Director-General replied on or around 15 April 2014, and notified the proponent of certain environmental assessment requirements that would need to be addressed before the Minister would consider the proposal pursuant to s 75W(3) of the EPA Act (‘DGRs’). The DGRs relevantly required that:

1. “The modification application must include…A thorough description and justification of the proposal, including…identification and analysis of alternatives, in particular for the hotel, and environmental impacts”;

2. “The modification application must include…A conclusion justifying the proposal, taking into consideration the environmental impacts of the proposal, and the suitability of the site”; and

3. “The modification application shall…Identify the alternative siting options that were considered, particularly for the hotel”.

17. On 7 July 2014, the NSW Government and the same members of the Crown Group entered into an Amended and Restated Framework Agreement (‘Amended Framework Agreement’), a partially redacted copy of which was in evidence. The Amended Framework Agreement included a number of provisions relevant to the development of the proposed hotel resort, including that:

1. the NSW Government had provided Crown Group with draft amendments to the CC Act, undertook to table the draft legislation as annexed to the agreement and warranted that it would “use reasonable endeavours to support the passing of” the legislation;

2. the NSW Government had undertaken to issue a number of directions to the Independent Liquor and Gaming Authority if it were to issue a licence to Crown Group pursuant to the CC Act (which is outlined in more detail below), and that it would “use reasonable endeavours to support” the licence application; and

3. once the Concept Plan modification and SSD Application were lodged with the Minister, the NSW Government would “use all reasonable endeavours to support” the modification and application.

18. In March 2015, the first respondent lodged a document that responded to the DGRs entitled “Environmental Assessment Report: Concept Plan Modification 8 and Major Development SEPP, State and Regional Development SEPP and Sydney Harbour SREP Amendments” prepared by JBA and dated 13 March 2015 (‘MOD 8 EAR’). This was, in effect, a request for modification of the Concept Plan lodged pursuant to s 75W(2) of the EPA Act.

19. Amongst other things, the MOD 8 EAR considered alternate locations, as required by the DGRs, in a section entitled “9.2.1 Analysis of Alternatives”. The MOD 8 EAR began with the proposition that there were two primary options, being (a) the “Do Nothing Option”, and (b) relocating Block Y to another location within Barangaroo South. JBA considered that the “Do Nothing Option” was inappropriate given the findings and recommendations of the Sussex-Penn Review, and as such, recommended that Block Y should be relocated.

20. The MOD 8 EAR then considered the five potential locations that had originally been proposed by the Barangaroo Delivery Authority in 2011. It considered that two of these could be immediately dismissed because they were in Barangaroo Central, and another could be disposed of as construction had begun on a commercial tower at that location, amongst other reasons. This therefore left two of the five options that had been originally considered.

21. After “extensive analysis”, it was determined that these two locations (plus a third location) should be subject to further detailed assessment. These three locations were:

1. a location known as “Recreation Zone – north”, which was on the foreshore with a 30 metre setback in the northwest corner of Barangaroo South and in front of Blocks 4A, B and C;

2. a location known as “Recreation Zone – mid”, which was in a part of the Barangaroo development known as Southern Cove, and was immediately to the south of “Recreation Zone – north” and immediately to the northeast of the previously proposed pier; and

3. a location known as “Hicksons Road – mid”, which was set back considerably from the foreshore along Hicksons Road, to the east of the midpoint between the other two proposed locations.

22. Whilst the first two options were entirely located on land zoned “RE1 – Public Recreation”, the third option was partially located on land zoned “B4 – Mixed Use”.

23. The MOD 8 EAR detailed a range of criteria against which each of these three locations were assessed, including the evaluation criteria used in the original developer selection bid process before the first respondent was selected to develop Barangaroo South. As a result of this process, the MOD 8 EAR concluded that the preferred proposed location for Block Y was “Recreation Zone – north”, as this represented “the best possible outcome for the site that balances the wide range of competing urban design, environmental, economic and social considerations”.

24. Because the preferred location required rezoning to permit the proposal, the MOD 8 EAR also sought that the area comprising “Recreation Zone – north” be rezoned from “RE1 – Public Recreation” to “B4 – Mixed Use” pursuant to the Proposed SEPP Amendments. This is dealt with further below.

25. The MOD 8 EAR was publicly exhibited by the Department between 18 March 2015 and 1 May 2015. During the exhibition period, a number of submissions were received, including a lengthy submission from the City of Sydney which opposed the proposal, and recommended that Block Y be built elsewhere within Barangaroo South.

26. The first respondent prepared and lodged a document in response to these submissions again prepared by JBA entitled “Response to Submissions and Preferred Project Report: Concept Plan Modification 8 and Major Development SEPP, State and Regional Development SEPP and Sydney Harbour SREP Amendments” on or around 11 September 2015 (‘MOD 8 PPR’). The MOD 8 PPR considered and responded to the submissions and maintained the first respondent’s view that Block Y should be relocated to the “Recreation Zone – north” location, despite submissions suggesting that the “Hicksons Road – mid” location would be more appropriate.

27. On 27 October 2015, the Barangaroo Design Advisory Panel, a panel comprised of Ms Sussex, Ms Penn and Mr Peter Poulet which was established by the Department to provide an independent impartial expert urban design assessment of MOD 8, released its final report regarding MOD 8 (‘Panel’s MOD 8 Report’). The Panel’s MOD 8 Report supported the application with a number of proposed conditions regarding bulk and public access more generally.

22. In March 2016, the Secretary of the Department released its environmental assessment report, which concluded that MOD 8 was “generally reasonable and acceptable”, subject to certain amendments (‘Secretary’s MOD 8 Report’).

23. The Minister subsequently referred the MOD 8 application to the PAC on or around 29 March 2016. The PAC was comprised of Ms Lynelle Briggs AO, Ms Annabelle Pegrum AM and Mr John Hann. The parties agree that the MOD 8 application referred to the PAC sought to modify the Concept Plan by, amongst other things:

1. relocating the proposed Block Y to the “Recreation Zone – north” location, which would otherwise be public recreation land under the Concept Plan as it then existed;

2. increasing the amount of permissible GFA available for tourist uses in Block Y, which would include casino gaming facilities; and

3. providing for a new park known as “Hickson Park” between the proposed new location of Block Y and Hickson Road.

30. The PAC held a number of meetings which it relied upon when making its determination, including:

1. a private meeting involving the PAC, the first respondent and third respondent on 4 February 2016, which included discussion where “alternate sites were considered”, although it was recorded that none had the “amenity, attraction and economic returns” of the proposed location (it is noted that this meeting occurred before the MOD 8 application was referred to the PAC); and

2. a public meeting held on 28 April 2016, where the “extreme disapproval of building a Casino on public land” and the perception that the “granting of a gaming license did not guarantee the site” were both discussed.

31. On 28 June 2016, the PAC published its “Determination Report” (‘MOD 8 Determination’), and approved the MOD 8 proposal in substantively the same terms as those contained in the application. This gave approval for a modified Block Y within the Concept Plan, which moved it to “Recreation Zone – north”, substantially increased its GFA, and allowed for the inclusion of the casino gaming facilities (and, as such, for it to operate as the Barangaroo RGF).

32. As outlined below, the applicant’s claims partially centre on statements made in the MOD 8 Determination, and as such they should be extracted at length. The first relevant extract is comprised of two paragraphs from the section entitled “1.3 Commission’s engagement”, which relates to an advice prepared by the PAC relating to the Proposed SEPP Amendments below, and provides as follows:

1.3 Commission’s engagement

…

The Commissioners who advised on the SEPP are Ms Lynelle Briggs AO (chair), Ms Annabelle Pegrum AM and Mr John Hann.

The Commission’s advice accepted that careful planning of Barangaroo South and Barangaroo Central has the potential to make this location a “must visit” place on the western edge of the harbour. The advice recognised that the location of Block Y and the restricted gaming facility was effectively legislatively settled by NSW Parliament when it amended the Casino Control Act 1992 in 2013 and that the Commission had no power to direct relocation or to change the associated legislation…

33. The next relevant passage is found in the section entitled “5.1.1 Site selection and Block Y”, and provides:

5.1.1 Site selection and Block Y

…

…the separate decisions of the NSW Parliament to site the hotel on public foreshore parkland and of BDA/Lend Lease/Crown to propose a significantly larger development for the Block Y built form that incorporates a restricted gaming facility and residential uses in addition to the hotel, has been confronting for the community and brings with it additional challenges.

A number of submissions strongly objected to the location of the proposed restricted gaming facility, preferring that the Barangaroo South foreshore park be retained and the Crown Sydney built form (proposed to accommodate the casino, hotel, residential tower and associated uses) be relocated further east, fronting onto Hickson Road…

The Commission has a great deal of sympathy for these views. However, it is important to understand that the NSW Parliament effectively settled the issue about the location of Crown Sydney (which forms part of SSD 6957) when it legislated for the restricted gaming facility’s new location on the foreshore on Block Y in 2013. The redistribution of the area of B4 zoning that includes Block Y is entirely consistent with Schedule 1 of the Casino Control Amendment (Barangaroo Restricted Gaming Facility) Act 2013 (which amended the Casino Control Act 1992). As mapped in that amendment by the NSW Parliament…the Barangaroo restricted gaming facility is to be sited on Block Y on land that had previously been approved as a major component of foreshore public parkland.

In summary, the proposed redistribution of built form along the western foreshore edge is consistent with the Casino Control Act 1992. The Commission has no power to direct relocation of the restricted gaming facility or to change the associated legislation. It accepts that the licence for the restricted gaming facility will remain in the location currently mapped. The Commission acknowledges that it also has no authority to alter the agreement between Crown Group Companies and the NSW Government.

The Commission has not relied solely on the Casino Control Act 1992 provisions as justification for the proposed concept plan modifications. The Commission has separately had regard for the merit of the proposed redistribution of built form and public domain as part of its determination. In doing so the Commission has considered the Department’s Assessment, relevant comments made by third parties as well as its own deliberations relating to the balance between the impacts and benefits of the proposal.

34. The first sentence of the final paragraph extracted above was repeated in the section entitled “6 Commission’s determination”.

35. On the same day, the PAC released a separate document entitled “Summary Fact Sheet”, which relevantly stated:

Many people appear unaware that the NSW Parliament passed legislation in 2013 that specified the siting of the Crown Sydney Hotel Resort’s restricted gaming facility on land previously earmarked as public open space on the foreshore of Barangaroo South. In making its determinations, the Commission had regard for the merit of the proposed redistribution of built form and public domain, and understood that it had no power to direct relocation or to change the associated legislation and, therefore, accepted that the Crown Sydney Hotel Resort would remain in the location mapped.

SSD Application

36. Whilst the MOD 8 Determination relocated the proposed Block Y on the Concept Plan, such a development still required a separate development consent pursuant to Pt 4 of the EPA Act.

37. On or around 10 July 2015, the third respondent lodged the SSD Application with the Minister, accompanied by a document entitled “State Significant Development Application SSD 15_6957 Environmental Impact Statement”, which was prepared by JBA and dated 8 July 2015 (‘SSD EIS’). The SSD Application and SSD EIS sought approval for the development of a building in the location corresponding to Block Y in the Concept Plan as modified by MOD 8.

38. Similar to the MOD 8 application, both the Barangaroo Design Advisory Panel and the Secretary of the Department prepared reports in relation to the SSD Application (‘Secretary’s SSD Report’), and the SSD Application was referred to the PAC on 29 March 2016 alongside the MOD 8 application. The PAC was again comprised of Ms Briggs, Ms Pegrum and Mr Hann. On 28 April 2016, the SSD Application was considered at the same public meeting as the MOD 8 application.

39. On 28 June 2016, the same date as the MOD 8 Determination, the PAC published its “Determination Report” (‘SSD Determination’), and approved the SSD Application in substantively the same terms as those contained in the application, although it was also subject to some amendments. This gave development consent for the construction of a building on the site specified as Block Y in the Concept Plan as amended by MOD 8.

40. The SSD Determination specifically states that it “should be read in parallel” with the MOD 8 Determination. It also describes the site location slightly differently to the MOD 8 Determination and the SEPP Advice, and provides in the section entitled “1.3 – Site History” as follows:

In November 2013 the NSW Parliament passed the Casino Control Amendment (Barangaroo Restricted Gaming Facility) Act 2013 which legislated for the restricted gaming facility’s location. The [CC Act] and associated mapping specifies the precise location for the restricted gaming facility, on land which is now known as Block Y, within Barangaroo South.

41. Whilst the SSD Determination does not explicitly consider the location of the proposed development, it does state in the section entitled “6 – Commission’s Consideration” that:

…The Commission is satisfied that the proposed Crown Sydney, subject to conditions, is consistent with the recently approved Concept Plan MOD 8.

Proposed SEPP Amendments

42. The Concept Plan amendments (and therefore the SSD Application) were, in effect, contingent on the Proposed SEPP Amendments being made by the Governor.

43. On or around 29 March 2016, the Minister sought advice from the PAC (which was again constituted by the same three persons as that which later produced the MOD 8 Determination and the SSD Determination) regarding the Proposed SEPP Amendments, and asked whether the Minister should:

1. rezone the “Recreation Zone – north” land from “RE1 – Public Recreation” to “B4 – Mixed Use”;

2. increase the maximum allowable GFA of buildings within certain parts of Barangaroo South; and

3. increase the maximum allowable building heights within certain parts of Barangaroo South.

44. The PAC provided its advice to the Minister on or around 1 June 2016 (‘SEPP Advice’). Whilst not identical to the (later) MOD 8 Determination, many of the passages of the SEPP Advice show a noticeable resemblance to those that were to be later published by the PAC in the MOD 8 Determination. Whilst the Proposed SEPP Amendments are not challenged by the applicant in these proceedings, the SEPP Advice is referred to by a number of parties, and so the relevant sections should be extracted:

3    Commission’s advice to the Minister

…

It is critically important to understand that the NSW Parliament effectively settled the issue about the location of Crown Sydney (which forms part of SSD 6957) when it legislated for the restricted gaming facility’s new location in 2013. The proposed redistribution of the area of B4 zoning that includes Block Y is entirely consistent with Schedule 1 of the Casino Control Amendment (Barangaroo Restricted Gaming Facility) Act 2013 (which amended the Casino Control Act 1992). As mapped in that amendment by the NSW Parliament…the Barangaroo restricted gaming facility is to be sited on Block Y on land that had previously been approved as a major component of foreshore public parkland.

A number of submissions have strongly objected to the location of the proposed restricted gaming facility, preferring that the Barangaroo South foreshore park be retained and the Block Y built form (Crown Sydney) be relocated further east, fronting onto Hickson Road…

…

Misconceptions around the Casino Control Amendment (Barangaroo Restricted Gaming Facility) Act 2013 have muddied the waters in relation to community views suggesting the restricted gaming facility can simply be moved elsewhere. Resolution is not that simple.

It was the decision of the NSW Parliament to issue a licence and associated map that expressly situates the future Barangaroo restricted gaming facility on the foreshore (effectively relocating Block Y onshore to what has become the proposed Crown Sydney site).

The Commission has no power to direct relocation of the restricted gaming facility or to change the associated legislation. Furthermore, there does not appear to be any immediate avenue for the Minister for Planning to change the location of the restricted gaming facility as defined under the Casino Control Act 1992 because the conditions in the Act pertaining to such a move have not been, nor are they likely to be met. The Commission cannot assume the Casino Control Act legislation will change. It accepts that the licence for the restricted gaming facility will remain in the location currently mapped.

In summary, the Commission’s advice is, therefore, that the proposed foreshore site of Block Y is entirely consistent with current legislation, which enables the development of a restricted gaming facility on the site.

45. A second advice was provided by the PAC to the Minister on or around 28 June 2016, although this did not add any further detail that is relevant for present purposes.

46. On 28 June 2016 the Governor assented to the State Environmental Planning Policy Amendment (Sydney Harbour) 2016 (NSW) (‘SEPP Amendment’). Pursuant to cll 4 and 5 of the SEPP Amendment, maps were approved to amend or replace certain existing maps adopted by the State Significant Precincts SEPP and the State and Regional Development SEPP. Further, pursuant to Schedule 2 of the SEPP Amendment, a number of changes were made to the contents of the Sydney Harbour SREP. For present purposes, this had the effect of rezoning the “Recreation Zone – north” location to “B4 – Mixed Use”, allowing the Barangaroo RGF to be constructed.

Legislative framework

Provisions relating to the Barangaroo RGF

47. Pursuant to s 6 of the CC Act, only one casino licence can be in force at any given time. However, on 27 November 2013, various amendments were made to the CC Act to allow a licence to be issued in relation to the Barangaroo RGF pursuant to the Casino Control Amendment (Barangaroo Restricted Gaming Facility) Act 2013 (NSW) (‘CC Amendment Act’).

48. The Barangaroo RGF is defined in s 3 of the CC Act, which provides:

3 Definitions

(1)   In this Act:

…

Barangaroo restricted gaming facility means premises:

(a)    situated or proposed to be situated on that part of Barangaroo (within the meaning of the Barangaroo Delivery Authority Act 2009) identified as the site of the Barangaroo restricted gaming facility on the Barangaroo Restricted Gaming Facility Site Map, and

(b)    defined for the time being under section 19A.

casino means:

(a) premises defined as a casino for the time being under section 19, or

(b)    the Barangaroo restricted gaming facility.

49. The phrase “Barangaroo Restricted Gaming Facility Site Map” (‘Site Map’) is also defined by s 3(4) of the CC Act, which states:

3 Definitions

…

(4)   The reference in the definition of Barangaroo restricted gaming facility to the Barangaroo Restricted Gaming Facility Site Map is a reference to a map by that name:

(a)    as tabled, by or on behalf of the Minister introducing the Bill for the Casino Control Amendment (Barangaroo Restricted Gaming Facility) Act 2013, in the Legislative Assembly on the day that the Bill was introduced (the original map), and

(b)    as amended or replaced from time to time by a map declared by proclamation to amend or replace the original map.

50. This provision (and arguably s 19A of the CC Act below) is constrained by s 3(5) of the CC Act, which provides:

3 Definitions

…

(5)   However, the site of the Barangaroo restricted gaming facility must remain in the area identified as Barangaroo South on the original map.

51. A copy of the Barangaroo RGF Site Map (‘Site Map’) is, pursuant to s 3(6) of the CC Act, available on the NSW Legislation website for public access. The Site Map has not been amended or replaced since the CC Amendment Act was originally tabled, and is wholly within the area defined as “Barangaroo” in s 4(1) of the Barangaroo Delivery Authority Act 2009 (NSW).

52. The boundaries of the Barangaroo RGF are governed by s 19A of the CC Act, which provides:

19A Boundaries of Barangaroo restricted gaming facility

(1)   The boundaries of the Barangaroo restricted gaming facility are to be defined initially by being specified in the restricted gaming licence for the facility.

(2)   The boundaries of the Barangaroo restricted gaming facility may be redefined by the Authority but only on application made at any time by the holder of the restricted gaming licence.

(3)   In defining or redefining the boundaries of the Barangaroo restricted gaming facility, the Authority is:

(a)    to have regard only to matters of public health and safety and matters that relate to the integrity of gaming in the facility in accordance with this Act, and

(b)    to ensure that the total gaming area within the Barangaroo restricted gaming facility does not exceed 20,000 square metres.

53. The “Authority” is defined in s 3 of the CC Act as being “the Independent Liquor and Gaming Authority constituted under the Gaming and Liquor Administration Act 2007” (‘Authority’).

54. The “restricted gaming licence” is issued pursuant to s 18 of the CC Act, and has been issued to Crown Sydney Gaming Pty Ltd, a related company to the third respondent (‘Licence’). For clarity, the Licence specifies that the Barangaroo RGF refers to the following:

premises situated or proposed to be situated on that part of Barangaroo (within the meaning of the Barangaroo Delivery Authority Act 2009) identified as the site of the Restricted Gaming Facility on the Restricted Gaming Facility Site Map (Site) and defined for the time being under section 19A of the Act. The Restricted Gaming Facility Map is the map referred to in section 3(4) of the Casino Control Act 1992

Other relevant CC Act provisions

55. As outlined below, there are a number of other provisions in the CC Act which are of relevance to the current proceedings.

56. The first of these is s 4 of the CC Act, which allows gambling to occur at premises that are licenced under the Act, and relevantly provides:

4   Gaming in licensed casino declared lawful

(1)   Despite the provisions of any other Act or law but subject to this Act, the conduct and playing of a game and the use of gaming equipment is lawful when the game is conducted and the gaming equipment is provided in a casino by or on behalf of the casino operator (that is, the holder of the licence for that casino under this Act).

57. Section 6 of the CC Act provides that there can only be one restricted gaming licence issued under the Act, and states:

6 Only one casino and one restricted gaming facility

(1)    Subject to subsection (2), only one casino licence may be in force under this Act at any particular time. A casino licence is to apply to one casino only.

(2)    A restricted gaming licence may be granted under this Act to operate the Barangaroo restricted gaming facility. Only one restricted gaming licence may be in force under this Act at any one time.

…

(3)    Sections 7–12 do not apply in relation to an application for a restricted gaming licence. [notes excluded]

58. The next provision is s 5A of the CC Act, which allows the Minister to provide directions to the Authority regarding the Barangaroo RGF, and relevantly states:

5A Ministerial directions relating to licensing of Barangaroo restricted gaming facility

(1) The Minister may give directions to the Authority in relation to the granting of a restricted gaming licence, including directions relating to the terms and conditions of the licence and the boundaries of the Barangaroo restricted gaming facility.

(2)   A direction under this section must be in writing and made publicly available on the Authority’s website.

(3)   The Authority must exercise its functions in relation to a restricted gaming licence in accordance with any directions of the Minister under this section.

59. It is also relevant to have recourse to the objects of the CC Act contained in s 4A, which include:

4A Primary objects of Act

(1)   Among the primary objects of this Act are:

(a)    ensuring that the management and operation of a casino remain free from criminal influence or exploitation, and

(b)    ensuring that gaming in a casino is conducted honestly, and

(c)    containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families.

(2)   All persons having functions under this Act are required to have due regard to the objects referred to in subsection (1) when exercising those functions.

60. There are also a number of provisions which, whilst not directly applicable in the present proceedings, provide context for the provisions outlined above. The first of these is s 19 of the CC Act, which provides:

19 Authority to define casino premises

(1)   The boundaries of a casino are to be defined initially by being specified in the casino licence.

(2)   The boundaries of a casino may be redefined by the Authority:

(a)    on its own initiative, or

(b)    on the application of the casino operator.

(2A)   The Authority is not to redefine the boundaries of a casino on its own initiative unless it:

(a)    notifies the casino operator in writing of the proposed change and gives the casino operator at least 14 days to make submissions to the Authority on the proposal, and

(b)    takes any such submissions into consideration before deciding whether to redefine the boundaries.

(3)   The redefining of the boundaries of a casino takes effect when the Authority gives written notice of it to the casino operator or on such later date as the notice may specify.

(4)   This section does not apply in relation to the Barangaroo restricted gaming facility.

61. Another relevant provision for context purposes is s 7 of the CC Act, which states:

7 Ministerial directions as to requirements for casino

(1) The Minister may from time to time give a direction in writing to the Authority as to any of the following matters:

(a)    the permissible location for a casino,

(b)    the required size and style of a casino,

(c)    the development required to take place in conjunction with the establishment of a casino, such as the development of a hotel or other complex of which a casino is to form part,

(d)    any other prescribed matter concerning the establishment of a casino.

(2)   Before giving a direction on any matter to the Authority, the Minister is to call for a report on the matter from the Authority and is to consider the Authority’s report.

(3)   A direction as to the permissible location for a casino must not specify a particular site unless the site is vested in the Crown or the Crown has the exclusive right of occupation of the site.

(4) The Minister may vary or revoke a direction by a further direction in writing to the Authority.

(5)   The Authority must exercise its functions under this Act in respect of the grant of a casino licence, the conduct of negotiations and the entering into of agreements in a manner that is consistent with the directions of the Minister under this section.

Concept plan modification provisions

62. As noted above, the applicant has challenged the approval process relating to MOD 8 of the Concept Plan, and in particular the MOD 8 Determination.

63. The Concept Plan was originally approved in February 2007 pursuant to s 75O of the EPA Act as it then existed. The Concept Plan approval, as modified up to MOD 7, forms part of a transitional Part 3A project pursuant to cl 2 of Sch 6A of the EPA Act. As such, given that the application to make MOD 8 has been brought since the repeal of Part 3A on 1 October 2011, the relevant version of the EPA Act is that which existed immediately prior to its repeal pursuant to cl 3 of Sch 6A of the EPA Act.

64. Section 75W of the EPA Act, which allows for modifications of concept plan approvals, provided as follows:

75W Modification of Minister’s approval

(1)   In this section:

Minister’s approval means an approval to carry out a project under this Part, and includes an approval of a concept plan.

modification of approval means changing the terms of a Minister’s approval, including:

(a)   revoking or varying a condition of the approval or imposing an additional condition of the approval, and

(b)    changing the terms of any determination made by the Minister under Division 3 in connection with the approval.

(2) The proponent may request the Minister to modify the Minister’s approval for a project. The Minister’s approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part.

(3)   The request for the Minister’s approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.

(4) The Minister may modify the approval (with or without conditions) or disapprove of the modification.

(5)   The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court. The Court may determine any such appeal.

(6)   Subsection (5) does not apply to a request to modify:

(a)   an approval granted by or as directed by the Court on appeal, or

(b)   a determination made by the Minister under Division 3 in connection with the approval of a concept plan.

(7)   This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan.

65. The first respondent also relies upon various other provisions of Part 3A of the EPA Act for context, including ss 75F, 75I, 75J and 75M of the EPA Act, which relevantly provide as follows:

75F Environmental assessment requirements for approval

…

(2)   When an application is made for the Minister’s approval for a project, the Director-General is to prepare environmental assessment requirements having regard to any such relevant guidelines in respect of the project.

(3)   The Director-General is to notify the proponent of the environmental assessment requirements. The Director-General may modify those requirements by further notice to the proponent.

(4)   In preparing the environmental assessment requirements, the Director-General is to consult relevant public authorities and have regard to the need for the requirements to assess any key issues raised by those public authorities.

…

75I Director-General’s environmental assessment report

(1)   The Director-General is to give a report on a project to the Minister for the purposes of the Minister’s consideration of the application for approval to carry out the project.

(2)   The Director-General’s report is to include:

(a)    a copy of the proponent’s environmental assessment and any preferred project report, and

(b)    any advice provided by public authorities on the project, and

(c)    a copy of any report of the Planning Assessment Commission in respect of the project, and

(d)    a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and

(e)    except in the case of a critical infrastructure project—a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and

(f)    any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate, and

(g)    a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project.

75J Giving of approval by Minister to carry out project

(1)   If:

(a)    the proponent makes an application for the approval of the Minister under this Part to carry out a project, and

(b)    the Director-General has given his or her report on the project to the Minister,

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

(2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:

(a)    the Director-General’s report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and

…

(c)    any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.

…

75M Application for approval of concept plan for project

(1) The Minister may authorise or require the proponent to apply for approval of a concept plan for a project.

(2)   The application is to:

(a)    outline the scope of the project and any development options, and

(b)    set out any proposal for the staged implementation of the project, and

(c)    contain any other matter required by the Director-General.

A detailed description of the project is not required.

(3)   The application is to be lodged with the Director-General.

…

State significant development approval provisions

66. The subject development is properly recognised as a State significant development under s 89C(2) of the EPA Act, as it is a development with a capital investment of more than $10 million on land within the Barangaroo site pursuant to cll 3(1) and 8(1)(b) of Sch 2 of the State and Regional Development SEPP.

67. Under s 89D(1) of the EPA Act, the Minister is the consent authority for a State significant development. The Minister’s power is outlined in s 89E of the EPA Act, which relevantly provides:

89E Consent for State significant development

(1) The Minister is to determine a development application in respect of State significant development by:

(a)    granting consent to the application with such modifications of the proposed development or on such conditions as the Minister may determine, or

(b)    refusing consent to the application.

68. Pursuant to s 89H of the EPA Act, s 79C of the EPA Act applies when the Minister is evaluating the application, which relevantly provides as follows:

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 proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)   any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

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

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

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.

69. As the subject site was subject to the Concept Plan, Sch 6A of the EPA Act applies. In particular, cl 3B(2)(d) of Sch 6A of the EPA Act states:

3B Provisions applying with respect to approval of concept plans

(2) After the repeal of Part 3A, the following provisions apply to any such development (whether or not a determination was made under section 75P(1)(b) when the concept plan was approved):

…

(d) a consent authority must not grant consent under Part 4 for the development unless it is satisfied that the development is generally consistent with the terms of the approval of the concept plan…

Approach

70. The applicant has, in effect, raised four grounds in these proceedings. The first two grounds relate to alleged errors made by the PAC under s 75W of the EPA Act when modifying the Concept Plan. The third ground relates to alleged breaches of cl 3B(2)(d) of Sch 6A and s 89E of the EPA Act, insofar as the SSD was approved on the basis that the Concept Plan was valid, which the applicant claimed was not the case given the first and second grounds. The fourth and final ground relates to various alleged breaches of ss 79C(1)(c), 89E and 89H of the EPA Act that arise as a result of approving the SSD Application.

71. Given that the first and second grounds arise out of similar alleged errors of law, it is appropriate to consider them together. Further, given that any finding on the third ground is contingent on my findings on the first and second grounds, it is appropriate to consider the grounds relating to the Concept Plan before considering the grounds relating to the SSD. The fourth ground, being independent of the other three grounds, will be considered separately.

72. Before proceeding, it is useful to note two things. First, during the course of the hearing, each subsequent respondent adopted the submissions of the respondents that came before them. As such, the third respondent has adopted the submissions of the first respondent, the fourth respondent the submissions of the first and third respondent, and the Minister the submissions of the first, third and fourth respondent.

73. Second, it is appropriate to delineate between what is meant by Block Y, and what is meant by the Barangaroo RGF. Block Y is the proposed structure which, pursuant to MOD 8, has been moved from a pier on the Sydney Harbour foreshore to the “Recreation Zone – north” location. The Barangaroo RGF, however, refers to the site specified in s 3 of the CC Act. Given that the Barangaroo RGF is defined as meaning premises “proposed to be situated” on the site identified in the Site Map, and that Block Y has been moved onto this location as a result of the approval of MOD 8, Block Y and the Barangaroo RGF in effect refer to the same building (which is, in turn, the proposed development in the SSD Determination). However, to the extent that Block Y was not proposed to be built on that location (as was the case for the Concept Plan up to and including MOD 7, and would be the case if the applicant was successful), it would not be the premises proposed to be situated on the relevant site in the Site Map, and so would be a different structure to the Barangaroo RGF. As there were no premises proposed to be situated on the relevant site up to and including MOD 7 of the Concept Plan, the Barangaroo RGF therefore did not exist until MOD 8 (and the SSD Application) were approved. This distinction between Block Y and the Barangaroo RGF is important in the discussion that follows.

First and second grounds

Summons

74. The first and second grounds in the summons can be summarised as follows.

75. The applicant alleges that when considering whether to grant approval for the MOD 8 application, the PAC received submissions that were concerned about the proposed location of Block Y, and suggested that it could be located elsewhere on the site, most notably in the “Hickson Road – mid” location.

76. The applicant alleges that whilst the PAC showed “a great deal of sympathy” for the views expressed in these submissions, the PAC also:

1. concluded that the NSW Parliament effectively settled and/or specified the location of Block Y when it passed the CC Amendment Act;

2. accepted that Block Y would remain in the location mapped in the CC Act; and

3. considered that it had no power to direct relocation of the Barangaroo RGF, amend the provisions of the CC Act or authorise the amendment of the Amended Framework Agreement.

77. As a result, the applicant alleges in the first ground that the PAC:

1. incorrectly understood that it could not exercise its power under s 75W(4) of the EPA Act in a way which was inconsistent with the location of the Barangaroo RGF specified pursuant to the CC Act;

2. closed its mind to the courses of action which were properly available to it when exercising its power under s 75W of the EPA Act, including:

1. disapproving the MOD 8 application, particularly on the basis that Block Y could be located elsewhere in Barangaroo South;

2. contemplating that the first and third respondents could relocate Block Y elsewhere in the Concept Plan layout which may be more acceptable; or

3. considering the respective merits of the proposed and other locations for Block Y unfettered by the provisions of the CC Act.

78. The applicant’s first ground concluded that, by reason of these matters, the PAC misconstrued its jurisdiction under s 75W of the EPA Act.

79. With regard to the second ground, the applicant alleges that, with regard to the considerations referred to in paragraph 76(3) above, the PAC took into account considerations which were irrelevant and not permitted to be taken into account when exercising its power under s 75W of the EPA Act.

80. The applicant alleged that these errors, taken together or separately, meant that the PAC:

1. committed an error of law amounting to jurisdictional error;

2. breached s 75W of the EPA Act; and

3. constructively failed to exercise its jurisdiction under s 75W of the EPA Act.

81. This, it is alleged, means that the PAC’s approval of MOD 8 is invalid and of no effect.

Applicant’s submissions

Generally

82. The primary position of the applicant was that the relocation of Block Y from the pier on the Harbour to a location within the Barangaroo South land proceeded on the basis of a “fundamental error of law” that tainted the PAC’s decision making process. The error contended for by the applicant is that the PAC determined that the NSW Parliament, through the CC Act, had “effectively settled” the location of the Barangaroo RGF.

83. The applicant submitted that this determination made by the PAC could be derived from the following statements that are extracted from the MOD 8 Determination:

1. “the separate decisions of the NSW Parliament to site the hotel on public foreshore parkland…”;

2. “The Commission has a great deal of sympathy for these views. However, it is important to understand that the NSW Parliament effectively settled the issue about the location of Crown Sydney…when it legislated for the restricted gaming facility’s new location on the foreshore on Block Y in 2013”;

3. “As mapped in that amendment by the NSW Parliament…the Barangaroo restricted gaming facility is to be sited on Block Y on land that had previously been approved as a major component of foreshore public parkland”;

4. “In summary, the proposed redistribution of built form along the western foreshore edge is consistent with the Casino Control Act 1992”;

5. “It accepts that the licence for the restricted gaming facility will remain in the location currently mapped”; and

6. “The Commission has not relied solely on the Casino Control Act 1992 provisions as justification for the proposed concept plan modifications”.

The CC Act

84. The applicant submitted that, in arriving at this understanding, the PAC misconstrued the CC Act, insofar as it concluded that the location of Block Y has been determined “with precision and with finality”.

85. The applicant submitted that the CC Act expressly contemplates that the boundaries of the Barangaroo RGF may change. It was submitted that this can be done in one of two ways:

1. through the operation of s 19A of the CC Act, where the Authority may redefine the boundaries of the Barangaroo RGF upon the application of the third respondent, noting that it may only take into account matters of public health and safety, matters relating to the integrity of gaming and the requirement that the total gaming area within the Barangaroo RGF not exceed 20,000 square metres; or

1. through the operation of s 3(4) of the CC Act, where the Governor amends or replaces the Site Map through proclamation.

86. The applicant submitted that whilst the power under s 19A of the CC Act involved the redefinition of boundaries, the power under s 3(4) of the CC Act concerned the site as a whole. It submitted that these were independent powers, and that the power under s 3(4) of the CC Act was the dominant power, as it allowed for the movement of the entire site, rather than the power under s 19A of the CC Act, which was merely an “adjustment power” and could only be redefined within the site identified in the Site Map. It was further submitted that whilst both powers were restrained insofar as the site and boundaries of the Barangaroo RGF could not be moved outside Barangaroo South pursuant to s 3(5) of the CC Act, the power under s 3(4) of the CC Act was not restricted to the circumstances and requirements outlined in s 19A of the CC Act. This, it was submitted, was consistent with s 7 of the CC Act, which allowed the Minister to direct the Authority as to the permissible location for a casino.

87. The applicant submitted that this is inconsistent with the PAC’s interpretation of the CC Act, which considered that such relocation could only occur pursuant to s 19A of the CC Act.

The EPA Act

88. The applicant submitted that, in general, the role of a consent authority pursuant to the EPA Act is to exercise a discretion with respect to approval “in accordance with the law and having regard to the merits of the particular development in the development application”: Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council (2008) 168 LGERA 239; [2008] NSWLEC 284 at [34]-[35] (Preston CJ of LEC). It submitted that this discretion is not narrowly confined, but is rather a “multifaceted consideration when making a decision that calls up considerations of and policy consistent with the exercise of power being invoked”: Haughton v Minister for Planning (2011) 185 LGERA 373; [2011] NSWLEC 217 at [158] (Craig J) (‘Haughton’). Despite this, the applicant also recognised that the discretion was not unbounded, and was subject to limitations that can be derived from the subject matter, scope and purpose of a provision, or as may be implied from the statutory text.

89. The applicant submitted that one such constraint is that identified by Basten JA, with McColl JA agreeing, in Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275 (‘Barrick’) at [13]. It submitted that his Honour observed that s 75W of the EPA Act was limited to a request by a proponent to modify an existing approval for a project. This, it submitted, meant that the “request to modify” is a mandatory relevant consideration for the purposes of the exercise of the power under s 75W(4) of the EPA Act, and that this would involve consideration of the proposed relocation.

90. The applicant also submitted that Basten JA observed that the Director-General is required to consider the proposed modification and notify the proponent of any environmental assessment requirements: Barrick at [14]. It submitted that these ‘requirements’ were mandatory considerations that the Minister must take into account when exercising his power pursuant to s 75W(4) of the EPA Act, as it would be “improbable” that Parliament would have only allowed the Minister to exercise this power once a proponent had addressed any requirements of the Director-General if the Minister was not required to have recourse to those requirements.

91. In light of this, the applicant submitted that both the proposed location for Block Y (which was the subject of the application) and the alternative locations for Block Y (which formed part of the DGRs) were each mandatory considerations pursuant to the reasoning of Basten JA in Barrick at [41]-[42], and therefore must be taken into account by the PAC. However, to the extent that this is incorrect, the applicant alternately submitted that they were both “permissive considerations” which were in play before the PAC.

92. The applicant submitted that the PAC had failed to take into account these considerations for two reasons.

93. First, the PAC had misconstrued the CC Act as outlined above.

94. Second, as a result of its misinterpretation of the CC Act, the PAC had failed to apply the correct approach to the exercise of its own powers, duties and functions under s 75W of the EPA Act. It submitted that whilst the PAC had correctly identified that it should consider “site selection”, it had in fact determined that this was a foregone conclusion, and that the site had already been decided by the NSW Parliament. The applicant submitted that this was an error on the part of the PAC, and that the PAC should have considered the environmental consequences of the proposed amendment pursuant to Barrick at [42], including the consequences of the site selection. It submitted that the CC Act in fact left a wide margin for the location of the Barangaroo RGF to be moved anywhere in Barangaroo South, and that “to the extent that they would otherwise overlap, one should be read as subject to the other”: Saraswati v R (1991) 172 CLR 1 at 17 (Gaudron J). It was submitted that “they” would refer to the CC Act and EPA Act in the present circumstances.

95. The applicant continued to submit that it was not the place of the CC Act, the Minister or the Authority to dictate the proper application of planning law. Rather, it submitted that the consent authority should have regard to the full range of environmental consequences of the proposal that is before them, and that it could have and should have had regard to other locations. It submitted that the PAC was under an obligation to consider the merits and demerits of the proposed site, including a comparison of the site with other potential sites.

96. Relying on the judgment of Bignold J in Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402; [1999] NSWLEC 157 (‘Kulin’), the applicant submitted that the present case represents a situation where a consent authority, being the PAC, has incorrectly abdicated its planning responsibility to others. The applicant submitted that it was clear that the CC Act does not permit development, which is instead governed by the EPA Act. It was submitted that whilst the PAC was entitled to give weight to issues regarding alternative sites as it saw fit, it was not entitled to disregard potential alternate sites altogether.

97. The applicant submitted that this position was consistent with the approach taken by Campbell JA in Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112; [2009] NSWCA 390 at [89]-[90], as even in circumstances where a consent authority is prohibited from refusing consent on the basis of certain criteria (which it submitted was not the case here), that consent authority is still required to undertake an assessment of the full range of environmental consequences.

98. The applicant alternately submitted that whilst the PAC was able to take into account a wide range of factors under s 75W of the EPA Act, this did not extend to taking into account its incorrect legal construction of the CC Act. The applicant noted that whilst this substantially overlapped with its first ground, it was entitled to characterise the PAC’s error in another way as outlined in MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; [2015] FCAFC 133.

Implications

99. The applicant therefore took the position that these errors were errors of law which amounted to a jurisdictional error. Relying on Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 (‘M61’), it submitted that misdirection as to the law constitutes an error of law, and as such is a jurisdictional error which could be characterised as a constructive failure to exercise jurisdiction, as the PAC misconceived the nature of its role and misunderstood the nature of the opinion it was required to form under s 75W(4) of the EPA Act.

100. The applicant also submitted that it did not matter that the PAC had not solely relied on its understanding of the CC Act, as it still formed part of the PAC’s determination. Relying on the decision in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 (‘M76’), the applicant submitted that to question whether the PAC would have made the same determination had it not taken its incorrect construction of the CC Act into account was hypothetical and therefore not something that the Court should have regard to. It submitted that, in effect, “the egg cannot be unscrambled”.

101. With regard to the allegation that the PAC had taken into account irrelevant considerations and as such misdirected itself, the applicant submitted that this fell under an independent head of invalidity pursuant to the decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [71]. It submitted that the PAC’s abdication of authority constituted such misdirection, and as such its determination was invalid.

Issues raised by applicant

102. As can be surmised from the summons and the applicant’s submissions above, there are five issues which require consideration, being:

1. How did the PAC construe the CC Act?

2. What are the powers under the CC Act?

3. Did the PAC misconstrue its jurisdiction under s 75W of the EPA Act?

4. Did the PAC take into account irrelevant considerations when exercising its power under s 75W of the EPA Act?

5. Did this lead to an error of law that renders the PAC’s approval of MOD 8 invalid?

103. I consider it appropriate to consider each in turn, including any sub-issues that arise out of each.

First issue: How did the PAC construe the CC Act?

Respondents’ submissions on first issue

104. The first respondent took the position that the PAC did not conclude that the CC Act had determined the location of Block Y “with precision and with finality”. It submitted that the PAC had recognised that the location of the Barangaroo RGF under the CC Act was relevant, and that it was unlikely that the location would be changed. It was submitted that whilst the PAC understood that it was possible as a matter of law to redefine the boundaries of the Barangaroo RGF, it made the finding of fact that the conditions of any such relocation “have not been met, nor are they likely to be met”. The first respondent submitted that this is what the PAC meant by the phrase “effectively settled”, and that based on this finding of fact the PAC considered that it was not practically viable to relocate Block Y to a location other than the site of the Barangaroo RGF. This, it was submitted, was supported by reference to internal advice the PAC had received whilst it was undertaking its review.

105. The third respondent submitted that the applicant’s position did not give a fair reading of the whole of the material before the PAC. Relying on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (‘Wu Shan Liang’), it submitted that the Court should not undertake the “fine-tooth comb” approach utilised by the applicant to derive its characterisation of the PAC’s position. It was submitted that the PAC had never made any explicit findings of law, and that the inferences drawn by the applicant from the above statements were not open on a fair reading of the whole of the evidence. Referring to each of the passages extracted by the applicant in turn (which are extracted above at 83), the third respondent submitted that none of these, separately or taken together, led to an inference that the PAC had made a finding (or error) of law. It therefore submitted that there had been no abdication of its planning responsibility.

106. The fourth respondent effectively adopted the submissions of the first respondent. However, it submitted that this position was further supported by a reading of the SEPP Advice, which included a number of similar phrases to those included in the MOD 8 Report, and expressly recognised that it was possible to relocate the Barangaroo RGF. It submitted that the PAC simply made a finding of fact that this was unlikely to occur, and accepted this as a practical reality.

107. The Minister took the position that the PAC’s reasoning and commentary were, when properly read, factually correct. It submitted that the applicant has unfairly attempted to place a gloss on the actual meaning of the wording used in the MOD 8 Report.

Applicant’s submissions in reply on first issue

108. The applicant submitted in reply that it had not gone through the MOD 8 Determination with a “fine-tooth comb”, but had rather selected passages which showed that the PAC had, in effect, reiterated the same errors a number of times.

109. The applicant further submitted that the respondents’ submissions were primarily based on material extrinsic to the reasons provided by the PAC, and that whilst these could explain why the PAC erred in the manner that it did, they did not provide evidence of the PAC’s reasoning process. In particular, the applicant submitted that the SEPP Advice was not incorporated into the MOD 8 Determination by reference and involved the PAC exercising a separate power which required it to look at different considerations under different statutory provisions.

110. Irrespective of the above, the applicant also submitted that the SEPP Advice supports its contentions insofar as it contained similar language to the MOD 8 Determination and included further errors of law, such as the statement that the NSW Parliament had issued a licence for the Barangaroo RGF.

111. The applicant ultimately submitted that the range of extrinsic material only shows that there was a wide range of opinions before the PAC, and rather than adopting any of these opinions, it chose to state its own understanding of the statutory scheme.

Consideration of first issue

112. As outlined by the Brennan CJ, Toohey, McHugh and Gummow JJ in Wu Shan Liang at 272:

…It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. [references excluded]

113. This is consistent with the reasoning of Kirby J, who in a separate but concurring judgment stated at 291:

1. The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

2. This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others. This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker.

114. His Honour however continued to recognise at 291 that:

Nevertheless, the reasons of a decision-maker will usually provide the only insight into the considerations which were, or were not, taken into account in reaching the decision which is impugned. It is therefore legitimate for the person affected, who challenges those reasons, to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous considerations taken into account or a conclusion reached which is wholly unreasonable in the requisite sense.

115. This approach is consistent with subsequent authorities. For example, in Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226, which related to an appeal from a decision of a Commissioner of the Land and Environment Court, Macfarlan JA (with whom Ipp JA and Hoeben J agreed) stated at [32]:

I appreciate that it is not appropriate to approach reasons of a Commissioner with a “fine-tooth comb”, but the court must nonetheless attempt to ascertain as best it can what were the essential reasons for a decision.

116. I accept the third respondent’s submission that the Court should not undertake a “fine-tooth comb” approach to examining the meaning of the MOD 8 Report. However, I also recognise that I must also undertake to ascertain the essential reasons for a decision on the evidence before me.

117. With regard to the extrinsic documents before the PAC, I consider that it is appropriate to have regard to the SEPP Advice, as whilst it was prepared in a different context, the PAC’s opinion on the operation of the CC Act (and its powers under the EPA Act) is similar between the two documents. I have also had regard to other extrinsic documents referred to in the MOD 8 Determination as insofar as they reveal what information was before the PAC at the time that it made its determination. Despite this, I have not had regard to any internal correspondence within the PAC, or private correspondence received by the PAC, that has not been expressly considered in the MOD 8 Determination, as there is no evidence that such correspondence was taken into account.

118. The applicant alleges that there are effectively three conclusions that the PAC reached when drafting the MOD 8 Determination, being that the PAC:

1. concluded that the NSW Parliament had effectively settled the location of Block Y by passing the CC Amendment Act;

2. considered that it had no power to relocate the Barangaroo RGF, amend the provisions of the CC Act or amend the terms of the Amended Framework Agreement; and

3. accepted that Block Y would remain in the location mapped on the Site Map.

119. Applying the above principles, and having regard to the MOD 8 Determination and other relevant documents before the Court, I consider that the PAC did reach a number of conclusions that are generally consistent with those alleged by the applicant.

120. First, the PAC made the explicit references to the decision “of the NSW Parliament to site the hotel on public foreshore parkland” and provided its opinion that “NSW Parliament effectively settled the issue about the location of Crown Sydney”. As such, I find the first conclusion alleged by the applicant was explicitly reached by the PAC.

121. Second, the PAC explicitly noted its opinion that it “had no power to direct relocation of the restricted gaming facility”, had no power to “change the associated legislation” (being the CC Act) and had “no authority to alter the agreement between Crown Group Companies and the NSW Government”, being the Amended Framework Agreement. These comments are unambiguous in their meaning, and as such I find that the second conclusion alleged by the applicant was explicitly reached by the PAC.

122. Third, the PAC stated that it “accepts that the licence for the restricted gaming facility will remain in the location currently mapped”. This is different to the allegation made by the applicant. Read in context, and without using a fine-tooth comb, it is clear that the PAC was aware that the Licence was for the Barangaroo RGF, and not for Block Y. As such, I find that whilst the PAC did not make the third conclusion alleged by the applicant, it did draw a similar conclusion being that the Licence for the Barangaroo RGF will remain in the location shown in the Site Map.

190. The same should hold true for the Site Map. It is, in effect, a piece of delegated legislation, and so should hold the same authority as a piece of delegated legislation. There was no evidence that the Minister intended on amending or replacing the Site Map, and so it was reasonable to presume that this would not occur. As such, the PAC was correct to find that the Licence would remain in the location mapped.

191. The second alleged error was that the PAC considered it had no power to “direct the relocation of the restricted gaming facility” or “change” the CC Act, and lacked the authority to “alter” the Amended Framework Agreement. I will consider each of these three statements in turn.

192. First, it is clear that the PAC does not have the power to direct the relocation of the Barangaroo RGF. The definition of the Barangaroo RGF in s 3(1) of the CC Act states that the site of the facility will be determined by reference to the Site Map. Section 3(4) of the CC Act states that the Site Map may be amended or replaced by proclamation. This proclamation must come from the Governor pursuant to s 21(1) of the Interpretation Act, who must act on the advice of the Ministers of the NSW Government as stated by McHugh J in Winneke at 373.

193. The Minister has delegated a number of his functions to the PAC under s 23 of the EPA Act pursuant to an instrument of delegation dated 14 September 2011. However, these functions are restricted to the determination of applications and the making of local environmental plans, and do not include advising the Governor to make a proclamation under the CC Act. As such, I find that the PAC was correct when it stated that it had no power to direct the relocation of the Barangaroo RGF.

194. Second, it is clear that the PAC does not have the power to change the terms of the CC Act. The CC Act is law passed by the NSW Parliament, and can therefore only be amended by the NSW Parliament: s 5 NSW Constitution. No such power to amend the CC Act has been delegated to the PAC by the Minister, nor do I consider that such a delegation would be possible. Given this, I find that the PAC was also correct when it stated that it had no power to change the terms of the CC Act.

195. Third, the Amended Framework Agreement is between various Crown Group companies (including the third respondent) and the NSW Government. The PAC, whilst the delegate for the Minister, is not privy to that contract. Furthermore, even if the PAC was privy to the Amended Framework Agreement, it could not amend or replace it without a written document executed by the other parties pursuant to cl 15.2 in any event. As such, I find that the PAC was correct when it stated that it had no authority to alter the Amended Framework Agreement.

196. The third alleged error was that the PAC considered that the NSW Parliament had determined to “site the hotel on public foreshore parkland” and “effectively settled the location about the location of Crown Sydney”.

197. I find that the PAC was again correct on this point. As noted above, there was no evidence before the PAC that the Site Map or the Licence would be amended pursuant to ss 3(4) and 19A of the CC Act respectively, and that it would therefore have been inappropriate for the PAC to consider otherwise.

198. However, this only relates to the Barangaroo RGF and not Block Y. Whilst the term “Crown Sydney” clearly refers to the Barangaroo RGF, a question arises as to what is meant by the term “hotel”. Read in the context of the whole of the MOD 8 Determination, the term “hotel” appears to refer to Block Y. However, this statement of the PAC should be regarded as more of a misstatement than anything else. When read in context, it is clear the PAC did not consider that Block Y and the Barangaroo RGF were one and the same. For example, the sentence continues to note that “the Block Y built form…incorporates a restricted gaming facility and residential uses”. Further, the SSD Determination (which is also challenged by the applicant) notes that it should be read in parallel with the MOD 8 Determination and clearly states that “the [CC Act] and associated mapping specifies the precise location for the restricted gaming facility, on land which is now known as Block Y, within Barangaroo South”.

199. As such, whilst the PAC recognised that the Barangaroo RGF and Block Y were conceptually different, it accepted that the Barangaroo RGF could only exist insofar as there was a structure proposed on the location designated in the Site Map, and that Block Y was the appropriate structure to fulfil this purpose. Importantly, this did not mean that the PAC failed to undertake an analysis of the merits of relocating Block Y to this location as outlined below. However, this perspective understandably led to some level of conflation between the Barangaroo RGF and Block Y. For the reasons that follow, I find that this was the result of the PAC’s assessment of the merits, rather than any misinterpretation of the CC Act.

200. Given the above, I find that the PAC has not misinterpreted the CC Act in the MOD 8 Determination.

Did the PAC fail to properly exercise its own powers, duties and functions under s 75W of the EPA Act?

206. I find that the PAC did not fail to properly exercise its own powers, duties and functions under s 75W of the EPA Act for two reasons.

207. First, the PAC was not required to independently assess the suitability of the proposed location for Block Y. As I have found above, whilst the DGRs were a mandatory consideration, the PAC was only required to consider them to the extent that it is able to determine whether or not they have been addressed by the proponent. As outlined above, the DGRs required that:

1. “The modification application must include…A thorough description and justification of the proposal, including…identification and analysis of alternatives, in particular for the hotel, and environmental impacts”;

2. “The modification application must include…A conclusion justifying the proposal, taking into consideration the environmental impacts of the proposal, and the suitability of the site”; and

3. “The modification application shall…Identify the alternative siting options that were considered, particularly for the hotel”.

208. It is clear from the MOD 8 Determination that the PAC had regard to the application before it, given its extensive summary and references to the MOD 8 EAR and MOD 8 PPR. Whilst the MOD 8 Determination does not specifically say that the PAC had regard to each of the requirements outlined above, it can be inferred that this was the case. A review of the MOD 8 EAR shows that it included a detailed section entitled “9.2.1 Analysis of Alternatives”, which considered a number of relocation options, the criteria by which those options were whittled down (which included environmental assessment), and the reasons for its preferred location at “Recreation Zone – north”. A section entitled “2.3 Location of Hickson Park and Hotel” in the MOD 8 PPR gave similar justifications for the proposed location.

209. It is therefore clear that the DGRs were addressed by the first respondent, and that it was not mandatory for the PAC to go beyond assessing whether this was the case. As such, the PAC properly exercised its powers, duties and functions under s 75W of the EPA Act, as it took into account the DGRs to the extent that was required in the circumstances.

210. Second, the PAC had sufficient regard to the merits of the proposed location of Block Y in any event. The PAC explicitly states that it had “not relied solely on the [CC Act] as justification for the proposed concept plan modifications”, but had rather “separately had regard for the merit of the proposed redistribution of built form and public domain as part of its determination”.

211. I do not accept the applicant’s submission that these quotes from the MOD 8 Determination means that the MOD 8 Determination was inherently bound up in the PAC’s interpretation of the CC Act. Whilst the PAC does state that it had “not relied solely” on its interpretation of the CC Act, and that its consideration of the merits had formed “part of its determination”, this does not lead to the conclusion that its decision was entirely infected by what the applicant alleges was (but I have found was not) a flawed understanding of the CC Act.

212. The PAC, in effect, undertook two assessments. First, it relied upon its understanding of the CC Act when assessing the merits of relocating Block Y to the “Recreation Zone – north” location. Second, it “separately had regard to the merit” of, in effect, relocating Block Y to that location without having regard to its interpretation of the CC Act. When read in context, the word “solely” does not refer to whether the second assessment also included other considerations rather than just the CC Act, but rather means that it undertook two assessments which both led it to the same determination. Whilst I consider that both of these assessments resulted in the proper exercise of the PAC’s powers, duties and functions, the establishment of either would be sufficient to uphold the PAC’s determination under this issue.

213. The first assessment relies on the CC Act, and involves the PAC making an assessment that Block Y should be situated at the same location as the Barangaroo RGF. The PAC concluded, correctly, that the Barangaroo RGF was likely to remain in the location mapped on the Site Map. It is this understanding which led the PAC to make statements in the MOD 8 Determination such as the “the location of Block Y and the restricted gaming facility was effectively legislatively settled by NSW Parliament” and “the Block Y built form…incorporates a restricted gaming facility”.

214. As a result, the PAC partially conflated the concepts of the Barangaroo RGF and Block Y. This is not because the PAC had abdicated its responsibility and formed the opinion that it had no authority to approve the development in any location other than that of the Barangaroo RGF, as submitted by the applicant. Rather, the PAC considered that the merits of developing Block Y (which would contain gaming facilities) on the site allocated for the Barangaroo RGF outweighed the demerits of developing it at that location, both because it would have the benefit of the Licence as well as other reasons. As such, I find that the PAC’s partial conflation of Block Y with the Barangaroo RGF did not constitute a failure to properly exercise its own powers, duties and functions, but rather was the result of it undertaking an appropriate assessment of the merits relating to the location of Block Y.

215. The second assessment does not rely on any construction of the CC Act, but is rather a separate analysis of the merits without having regard to its interpretation of the CC Act. In the MOD 8 Determination, the PAC states that it had regard to the “merit of the proposed redistribution of built form and public domain”, and that it considered the Secretary’s MOD 8 Report, the submissions of third parties (who apparently expressed “extreme disapproval of building a Casino on public land”) and its “own deliberations relating to the balance between the impacts and benefits of the proposal”.

216. The applicant’s only submission against this finding is that it relied upon the PAC’s interpretation of the CC Act. There is inadequate evidence before the Court to support this contention, and as such its submissions regarding the reasoning of Kiefel and Keane JJ in M76 are of limited relevance. I therefore find that the PAC undertook a separate assessment of the merits of the proposed location of Block Y that did not include its interpretation of the CC Act, and separately assessed that the proposed location for Block Y was appropriate in the circumstances.

217. For an abundance of clarity, I find that the PAC has not failed to properly exercise its own powers, duties and functions under s 75W of the EPA Act for three independent but complementary reasons, being:

1. the PAC was not required to undertake its own independent assessment of the alternate sites when it considered the DGRs;

2. the PAC had undertaken an assessment of the merits of relocating Block Y to the proposed location which relied on its correct understanding of the CC Act; and

3. the PAC had undertaken a separate assessment of the merits of relocating Block Y to the proposed location which did not rely on its understanding of the CC Act.

218. Any of these findings, taken either in isolation or together, is sufficient for the Court to make a finding that the PAC has not failed to properly exercise its own powers, duties or functions under s 75W of the EPA Act.

Fourth issue: Did the PAC take into account irrelevant considerations when exercising its power under s 75W of the EPA Act?

Respondents’ submissions on fourth issue

219. The first and fourth respondents submitted that, because the applicant has submitted that this allegation is no more than a restatement of the issues dealt with under the third issue above, it should fail for the same reasons.

Consideration of fourth issue

220. I consider that, given my findings in relation to the third issue, the PAC did not take into account irrelevant considerations when exercising its power under s 75W of the EPA Act.

221. Given that I have found that the PAC neither failed to exercise its powers, duties and functions, nor took into account irrelevant considerations when exercising its power, this is sufficient for me to dismiss the first and second grounds brought by the applicant. However, to the extent that I am incorrect in my findings above, I consider it appropriate to deal with the fifth issue in any event.

Fifth issue: Did these lead to an error of law that renders the PAC’s approval of MOD 8 invalid?

Respondents’ submissions on fifth issue

222. The first respondent took the position that the Court should not accept that an error made by an administrative decision maker relating to a legal issue constitutes an error of law. It submitted that M61 could be distinguished because it related to the process of decision making under the Migration Act 1958 (Cth) (‘Migration Act’). It submitted that there was no equivalent link between the process of decision making under s 75W of the EPA Act and the correct understanding of the CC Act presently applied.

223. The fourth respondent took the position that there was a difference between a decision based on a mandatory consideration, and a decision based on a permissible consideration. It submitted that if a decision maker makes an error when construing a statutory scheme under which it is operating or when determining a question of law which the statutory scheme requires it to consider, that error will cause the decision to miscarry. However, it submitted that where such a consideration is not mandatory, such an error would not necessarily be the case unless it could be shown how that error impacted the decision maker’s determination. It submitted that the present case falls into the latter category, and that the applicant had not shown why this would be the case.

224. The fourth respondent further submitted that the authorities relied upon by the applicant were of little assistance. It submitted those authorities did not endorse a general proposition that every error of law made by a decision maker, including those unrelated to the relevant statutory scheme, would lead to invalidity.

225. The Minister took the position that to the extent that the PAC did misconstrue the CC Act, this was immaterial unless it also misunderstood or failed to exercise its jurisdiction under s 75W of the EPA Act. It submitted that, at most, the PAC’s misunderstanding of the CC Act led it to form the opinion that the Barangaroo RGF would remain in the location mapped. It submitted that the fact that the location may in fact change in the future is not a matter that could ultimately have had an impact on the PAC’s determination of the application then before it.

Applicant’s submissions in reply on the fifth issue

226. The applicant submitted in reply that it was incorrect to characterise the PAC’s errors involving only factual findings, as it had informed itself on questions of law, meaning that its errors were errors of law. It submitted that M61 could not be distinguished, as the Migration Act did not require the consideration of anything, but rather required the Minister in those proceedings to exercise power using the “correct legal principles, correctly applied”: at [78].

227. The applicant also submitted that the Minister’s contention regarding the materiality of the PAC’s error is misplaced, as it does not “square up” with the PAC’s identification of site selection as being an important issue for consideration, and ignores the fact that the PAC set aside this consideration due to an erroneous understanding of the law.

228. The Applicant further submitted that, regardless of whether it was incorrect on every other point, the respondents had failed to respond to its submission regarding the abdication of planning responsibility. It submitted that it was correct on this point. It submitted that the PAC had misdirected itself as to the applicable law, as to the extent that the PAC had determined to refuse consent as a result of it abdicating its responsibility, it was both possible and allowable under the CC Act that the Licence could be moved elsewhere.

Consideration of fifth issue

229. As noted above, my findings on the third and fourth issues are sufficient to dismiss the first and second grounds raised by the applicant. However, to the extent that I am incorrect, and there has been either a failure to properly exercise its own powers, duties and functions or an irrelevant consideration taken into account, I consider it appropriate to provide my findings on the fifth issue in any event.

230. The applicant’s contention relies heavily on the findings of the unanimous High Court decision in M61. In particular, it relies on a passage found at [78], where French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ stated:

The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice”. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied. [Emphasis added, footnotes excluded]

231. I consider that this statement is equally applicable to s 75W of the EPA Act. In circumstances where a consent authority is exercising its power under s 75W of the EPA Act, it must interpret that power correctly. To the extent that it misinterprets that power, and that leads to a failure to properly exercise its powers, duties or functions, then the consent authority will have, in many circumstances, made an error of law.

232. I find that the PAC has not made an error of law, as it has not misconstrued or misapplied its power under s 75W of the EPA Act. However, to the extent that I am incorrect on those findings, I consider that had it not proceeded “by reference to correct legal principles, correctly applied”, it would have committed an error of law.

Conclusions on the first and second grounds

233. As noted above, I dismiss the first and second grounds brought by the applicant, as the applicant has not established that the PAC failed to properly exercise its powers, duties pursuant to s 75W of the EPA Act, and has similarly not established that the PAC took into account irrelevant considerations in contravention of s 75W of the EPA Act.

Third Ground

Summons

234. The third ground of appeal is made up of two alternate (but similar) allegations in the summons, the basis of which is the premise that the Concept Plan is invalid and void (as alleged in the first and second grounds). To the extent that this premise was correct, the applicant alleged that:

1. the PAC breached cl 3B(2)(d) of Sch 6A of the EPA Act, as the Concept Plan has not been modified as a result of MOD 8, and therefore the SSD Determination is inconsistent with the Concept Plan; and

2. the PAC breached s 89E of the EPA Act, as it proceeded on the basis that the MOD 8 Determination was lawful when this was not the case, and so constructively failed to properly exercise its jurisdiction.

235. As a result of either or both of these allegations, the applicant alleged that the PAC committed an error of law amounting to jurisdictional error.

Submissions

236. The applicant submitted that under cl 3B(2)(d) of Sch 6A of the EPA Act, the PAC was prohibited from granting consent under s 89E of the EPA Act with respect to the SSD Application unless it was “satisfied that the development is generally consistent with the terms of the approval” of the Concept Plan. It submitted that, if the MOD 8 Determination was invalid, the Concept Plan against which the SSD Application was to be assessed was that which existed up until MOD 7. It submitted that the Concept Plan as amended up to MOD 7 sited Block Y on a pier over Sydney Harbour. As such, it submitted that, to the extent MOD 8 was invalid, the SSD Application would similarly be invalid, as it sought development that was inconsistent with the MOD 7 Concept Plan.

237. The first respondent conceded that, to the extent that the MOD 8 Determination was invalid, the SSD Determination would also be invalid pursuant to cl 3B(2)(d) of Sch 6A of the EPA Act. The third respondent and the Minister submitted that these allegations were incorrect, as they assumed the MOD 8 Determination was invalid, when this was not the case. The fourth respondent did not make any submissions on the these allegations.

Consideration

238. I find that, to the extent that I am incorrect in my findings on the first and second grounds, and the MOD 8 Determination is invalid and void, the SSD Determination would similarly be void pursuant to cl 3B(2)(d) of Sch 6A of the EPA Act, as it would clearly be inconsistent with the Concept Plan as it existed under MOD 7. In such circumstances, this would therefore be an error of law that led to jurisdictional error, thus rendering the SSD Determination invalid and therefore void. Given this finding, I do not consider it necessary to consider the allegation contained in paragraph 234(2) above.

239. However, given that I have found that the first and second grounds should be dismissed, I also find that the third ground should be dismissed as the necessary precondition of the MOD 8 Determination being void has not been met.

Fourth Ground

Summons

240. The fourth ground similarly arises out of two separate but similar allegations in the summons.

241. The first allegation relies on similar premises as those comprising the third ground. The applicant alleged that the PAC breached s 89E of the EPA Act, as it relied either on the MOD 8 Determination or similar reasoning to that it had used when preparing the MOD 8 Determination, and as such had taken into account the same irrelevant considerations.

242. The second allegation is worded similarly to the first and second grounds. The applicant alleged that the PAC considered that it had no power to direct relocation of the Barangaroo RGF, amend the terms of the CC Act or alter the Amended Framework Agreement, and relied on these considerations when responding to submissions. The applicant alleged that the PAC therefore took into account matters which were irrelevant in contravention of ss 79C(1)(c), 89E and 89H and, alternatively, failed to give proper, genuine and realistic consideration to the suitability of the proposed location of Block Y.

243. As a result of either or both of these grounds, it was alleged that the PAC had committed an error of law amounting to jurisdictional error, and constructively failed to exercise its jurisdiction under s 89E of the EPA Act, thus rendering the SSD Determination invalid and void.

Applicant’s submissions

244. The applicant submitted that the PAC assessed the SSD Application concurrently with the proposed MOD 8 application, and that the SSD Determination explicitly referred to and relied upon the MOD 8 Determination. It submitted that, for the reasons given above in relation to the first and second grounds, the PAC failed to properly exercise its powers, duties and functions not only pursuant to s 75W of the EPA Act, but also under s 89E of the EPA Act. It submitted that the power conferred by s 89E of the EPA Act was broad, and the PAC was required to consider at least the matters set out in s 79C(1) of the EPA Act: Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd (2016) 216 LGERA 40; [2016] NSWLEC 6 at [178] (Preston CJ of LEC). It further submitted that s 79C(1)(c) specifically requires that the PAC consider the “suitability of the site for development”, and that this phrase operates at a “high level of generality”: MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59; [2006] NSWLEC 581 at [86] (Jagot J) (‘MCC Energy’).

245. The applicant submitted that whilst the PAC did embark on a “truncated” consideration of these matters, this was not “proper, genuine and realistic consideration”. It submitted that the PAC again formed the opinion that the consideration of the suitability of the site was effectively foreclosed as a result of the NSW Parliament’s specification of the Barangaroo RGF’s location.

246. The applicant finally submitted that the PAC “at most” acknowledged the suitability of the site “in a purely perfunctory fashion”. Relying on the decision of Bathurst CJ, Beazley P and Tobias AJA in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 (‘Warkworth’), it submitted that this does not suffice where a decision maker is bound to take a particular matter into account.

Respondents’ submissions

247. The first and fourth respondents, as well as the Minister, submitted that the applicant must fail on the fourth ground for the same reasons as the first and second grounds.

248. The first respondent also submitted that the applicant’s contention that the PAC had failed to consider the suitability of the site (pursuant to s 79C(1)(c) of the EPA Act) was not an independent argument, particularly given that the applicant conceded that the PAC did consider that issue. Rather, it submitted that this contention was simply a further formulation of the contention that the PAC wrongly considered itself constrained from considering the merits of the location of Block Y due to its misunderstanding of the CC Act.

249. The third respondent submitted that, despite the applicant’s contentions, the PAC had considered all relevant matters in a genuine and realistic manner. Relying on the judgment of Hemmings J in Boultonv Burwood Municipal Council (1988) 66 LGRA 131 at 135 (‘Boulton’), it submitted that “the consideration and determination of a development application is not necessarily confined to one act or occasion, and may involve a lengthy 'process’”, and that whilst there is no specific passage in the SSD Determination which explicitly conveys that it had regard to the suitability of the site, it is clear that the merits of the relocation of Block Y were considered. It was submitted that the decision of Jagot J in MCC Energy did not assist the applicant, as her Honour found at [87] that even though the consent authority in those proceedings had not explicitly made reference to the suitability of the site, it had still “repeatedly addressed” that issue, similar to the present case.

250. The third respondent, relying on the judgments of Basten JA in Kindimindi at [75]-[79], Tobias JA in Anderson v Director General, Department of Environment and Climate Change (2008) 163 LGERA 400; [2008] NSWCA 337 at [51]-[60] and Preston CJ of LEC in Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 at [56]-[63], finally submitted that the Court in any event should be hesitant to consider a failure to give “proper, genuine and realistic consideration” as a proper grounds for judicial review.

251. The fourth respondent also submitted that the phrase “the site” in s 79C(1)(c) of the EPA Act should not be considered to necessarily entail consideration of all other potential sites, particularly where specific other sites had already been considered in the context of the MOD 8 Determination.

252. The Minister also submitted that it was unnecessary in the present proceedings to determine whether the PAC was legally obliged to give “proper, genuine and realistic” consideration to the suitability of the proposed site. The Minister submitted that whilst the PAC was required to undertake a “more than perfunctory” consideration, the consideration given in the MOD 8 Determination (which was to be read in parallel with the SSD Determination) was sufficient.

Consideration

253. I find that the first allegation in the fourth ground should be dismissed for the reasons I have already given in relation to the first and second grounds. As I have found above, the PAC has not taken into account irrelevant considerations as alleged by the applicant, and as such this allegation must fail.

254. I find that the second allegation in the fourth ground should also be dismissed.

255. I accept that the PAC was required to take into account the matters contained within s 79C(1) of the EPA Act. As outlined by Bathurst CJ, Beazley P and Tobias AJA in Warkworth at [215]:

…It was not open to the decision-maker to ignore the prescribed standard or matter or to subvert those mandatory considerations, for example, by the application of some other standard, or no standard at all, unless consideration had been given to the statutory prescription. Nor would a mere perfunctory acknowledgement of the existence of the mandatory consideration suffice…

256. I also accept that such mandatory considerations must be considered as a part of what will often be a lengthy process. As outlined by Hemmings J in Boulton at 135:

The consideration and determination or a development application is not necessarily confined to one act or occasion, and may involve a lengthy “process”…it may extent from the date of the application including site inspections, discussions and formulations of conditions or reasons for the determination.

257. This is consistent with the judgment of Jagot J in MCC Energy, where her Honour found that the requirement to consider the suitability of the site should be done with a high level of generality. However, such a finding should be read in the context of what her Honour stated at [85]-[86]:

85 Section 79C(1)(c) of the EPA Act prescribes that a consent authority is to take into consideration, as relevant, the suitability of the site for the development. The applicant claimed that Mr Shelley’s report did not consider the suitability of the site for the development and that, accordingly, it should be inferred that the Council (more specifically, the General Manager) also did not consider that matter…

86 The phrase “suitability of the site for the development” operates at a high level of generality. Many facts may be relevant to questions of a site’s suitability for various developments. Identifying those facts is a matter for the consent authority, subject to the confined ground of review of Wednesbury unreasonableness. Importantly, substance not form must govern. A consent authority need not place a label on its consideration in order to consider the substance of that matter. The fact that Mr Shelley’s report did not expressly refer to s 79C(1)(c) or use the phrase “suitability of site for the development” does not mean that Mr Shelley’s report failed to address that matter…

258. Her Honour continued at [87] to recite a number of instances where the consent authority had implicitly addressed the suitability of the site and at [88] to detail a number of other documents which were available to the consent authority which also considered the suitability of the site. Her Honour therefore concluded that the consent authority had proper regard to the suitability of the site.

259. I consider that a similar conclusion can be reached in the present case. Whilst the SSD Determination did not specifically state that it had regard to the suitability of the site for the development, when read as a whole it is clear that it did. Amongst other things, the SSD Determination:

1. described the site in the sections entitled “1.1 Site” and “1.3 Site history”, including a number of the changes to the allocation of land and in particular the site of Block Y, where the development is proposed to be constructed;

2. noted that the Sussex-Penn Review had suggested that the proposed development’s originally proposed location be moved in the section entitled “1.4 2011 Sussex and Penn Review”;

3. had regard to the various submissions in the section entitled “5 Meetings and Site Visits” and “Appendix 3”, including that there were “concerns related to the loss of public open space”, “Extreme disapproval of building a Casino on public land” and various other matters relating to “Site Selection”;

4. concluded that the proposed development was “consistent with the recently approved Concept Plan MOD 8”; and

5. recorded in “Appendix 1” that “Alternate sites were considered…but none had the amenity, attraction and economic returns of” the proposed location at a site visit on 4 February 2016 (although it is noted that this occurred before the SSD Application was referred to the PAC).

260. Further, the PAC also considered a number of documents. In particular, the SSD Determination explicitly states that it is to be read in parallel with the MOD 8 Determination, meaning that every reference to the suitability of the site in the MOD 8 Determination is also relevant to determining whether the PAC gave sufficient consideration to the suitability of the site when assessing the SSD Application. The PAC also had explicit regard to a range of other documents, such as the Secretary’s SSD Report, which:

1. described the site in detail in the section entitled “1.3 The Subject Site”;

2. included Figure 2 which showed “The subject site and its proposed future surrounding context”;

3. recited a number of submissions which related to the “location” of the proposed development in the section entitled “4.3 Public Submissions”; and

4. stated in the section entitled “5.2 Consistency with the Concept Plan” that MOD 8 “seeks approval to modify the location” of Block Y and that the proposed development in the SSD Application was reliant on these changes being made.

261. As such, I find that the PAC did not simply give a “mere perfunctory acknowledgement” to the requirement to consider the suitability of the site, but rather had proper regard to this mandatory consideration as required under s 79C(1) of the EPA Act. The second allegation must also therefore fail.

262. As such, I dismiss the fourth ground raised by the applicant.

Conclusions and orders

263. I find that the applicant has not made out any of its grounds of challenge, and as such the proceedings should be dismissed.

264. The usual costs rule in Class 4 proceedings is that the unsuccessful party must pay the costs of the successful party, and as such, the applicant would ordinarily be ordered to pay the respondents’ costs. However, as I have not heard submissions on costs, and noting that the applicant is an incorporated association acting, in effect, as a community action group, I will delay such an order to enable an application to be made for an alternative order.

265. The Court orders that:

1. The Summons filed by the applicant on 29 July 2016 is dismissed.

2. The Applicant is to pay the First, Third, Fourth and Fifth Respondents’ costs unless a notice of motion is filed by any party seeking alternative costs orders on or before 10 February 2017.

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Decision last updated: 23 December 2016