Minister for Planning & Anor. v Gales Holdings Pty. Limited

[2006] NSWCA 212

Reported Decision: 146 LGERA 450

Court of Appeal

CITATION:	Minister for Planning & Anor. v. Gales Holdings Pty. Limited [2006] NSWCA 212
HEARING DATE(S):	26 July 2006
JUDGMENT DATE:	31 July 2006
JUDGMENT OF:	Giles JA at 1; Hodgson JA at 2; Ipp JA at 62
DECISION:	1. Appeal allowed. 2. Respondent to pay appellants’ costs of the appeal, and to have a certificate under the Suitors’ Fund Act if otherwise eligible. 3. Matter remitted to the Land & Environment Court for further consideration. 4. Orders below set aside, including costs orders; and the costs of the proceedings below to be in the discretion of the judge hearing the remainder of the proceedings.
CATCHWORDS:	ENVIRONMENTAL LAW - LOCAL GOVERNMENT - Development - State significant development - Whether criteria satisfied - Whether Minister the consent authority - Whether whole or part of development prohibited - Effect of transitional provisions - Whether transitional provisions valid.
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979, s.76A, Schedule 6. Environmental Planning & Assessment Regulation 2005, cl.8J. State Environmental Planning Policy No.62 - Sustainable Agriculture.
CASES CITED:	Lewis v. Daily Telegraph Limited (No.2) [1964] 2 QB 601
PARTIES:	Minister for Planning - 1st appellant Australian Bay Lobster Producers Pty. Limited - 2nd appellant Gales Holdings Pty. Limited - respondent
FILE NUMBER(S):	CA 40398/06
COUNSEL:	Mr. N.J. Williams SC with Ms. H.P. Irish and Ms. A.J. Mitchelmore for 1st appellant Mr. R. O'Gorman-Hughes for 2nd appellant Mr. T.F. Robertson SC for respondent
SOLICITORS:	Department of Planning Legal Services Branch, Sydney for 1st appellant Staunton Beattie, Sydney for 2nd appellant Woolf Associates, Sydney for respondent
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 40246/06
LOWER COURT JUDICIAL OFFICER:	Talbot J
LOWER COURT DATE OF DECISION:	23/06/06
LOWER COURT MEDIUM NEUTRAL CITATION:	[2006] NSWLEC 347

CA 40398/06
LEC 40246/06

GILES JA
HODGSON JA
IPP JA

Monday 31 July 2006

MINISTER FOR PLANNING & ANOR. V. GALES HOLDINGS PTY. LIMITED

Judgment

1 GILES JA: I agree with Hodgson JA.

2 HODGSON JA: On 21 December 2005, the first appellant (the Minister) purported to grant consent to a development application submitted by the second appellant (Bay Lobster) in respect of a tank-based aquaculture facility proposed for land at Cudgen in the Tweed local government area.

3 The respondent (Gales) challenged the validity of that development consent in the Land & Environment Court; and on 23 June 2006 Talbot J declared that this development consent was invalid, and made an order restraining Bay Lobster from carrying out or authorising any development pursuant to that consent.

4 The appellants have appealed from that decision. The appeal has been brought by one Notice of Appeal, although each appellant has a different solicitor. It may be that this is irregular: see Lewis v. Daily Telegraph Limited (No.2) [1964] 2 QB 601, Supreme Court Rules Pt.51 r.3. However, no objection has been raised, and there appears to be no inconvenience in permitting the appeal to proceed as thus constituted. There may be a question as to whether separate costs should be allowed.

BASIC STATUTORY PROVISIONS

5 At relevant times, the Environmental Planning & Assessment Act 1979 (the EPA Act) contained provisions regulating the carrying out of “development”, which is defined in such a way as to include the use of land. Division 1 of Part IV of the EPA Act introduces a three-fold classification of development, into development that does not need consent (s.76), development that needs consent (s.76A) and development that is prohibited (s.76B).

6 From 1 July 1998 until they were repealed with effect from 1 August 2005, a number of sub-sections of s.76A dealt with what was called “State significant development”. In particular, ss.(3), (7), (8) and (9) were as follows:

(3) Two types of development that need consent
Development that may not be carried out except with development consent comprises 2 types, namely:
(a) local development (which includes complying development), and
(b) State significant development.

(7) State significant development
State significant development is:
(a) development:
(i) that is declared by a State environmental planning policy or a regional environmental plan to be State significant development, and
(ii) that may be carried out with development consent, or
(b) particular development, or a particular class of development:
(i) that, under an environmental planning instrument, may be carried out with development consent, and
(ii) that, in the opinion of the Minister, is of State or regional environmental planning significance, and
(iii) that is declared by the Minister, by notice in the Gazette, to be State significant development, or

(c) development that is proposed to be carried out in accordance with a development application that the Minister has directed, under section 88A, to be referred to the Minister for determination, or
(d) prohibited development in respect of which a direction by the Minister under section 89 is in force.

(8) If:
(a) a project comprises development part of which is State significant development, all other development comprised in the project is taken to be State significant development, and
(b) but for this provision, part of State significant development would be subject to Part 5, this Part applies to the exclusion of Part 5 and the development may be carried out with development consent, and
(c) but for this provision, part of State significant development would be prohibited, the development may be carried out with development consent.

(9) The Minister is the consent authority for State significant development.

7 At all material times, development for the purpose of tank-based aquaculture in the Tweed local government area was regulated by State Environmental Planning Policy No.62 – Sustainable Aquaculture (SEPP 62), made on 25 August 2000.

8 Clause 4.1 of SEPP 62 contained the following definitions:

aquaculture development means development for the purpose of aquaculture.

intensive aquaculture means aquaculture undertaken by providing supplementary food for the fish or marine vegetation (whether or not naturally occurring food is also consumed or available for consumption by the fish or marine vegetation).

tank-based aquaculture means intensive aquaculture undertaken exclusively in tanks, but not including natural water-based aquaculture.

9 Clauses 7, 9 and 11 of SEPP 62 were as follows:

7 Pond-based and tank-based aquaculture permissible with consent
(1) This clause applies to development for the purpose of pond-based aquaculture, or tank-based aquaculture, to which this Policy applies.
(2) A person may carry out any such aquaculture development with development consent if, in the opinion of the consent authority, it complies with the site location and operational requirements set out in Schedule 1 for the development (the minimum performance criteria ).
(3) The requirements set out in Schedule 1 are minimum requirements and do not limit the matters a consent authority is required to take into consideration under the Act or the conditions that it may impose on any development consent.

9 Consent authority for permissible aquaculture
The consent authority for development to which this Policy applies (other than State significant development) is as follows:
(a) the consent authority (if any) designated in Schedule 1 or 2,
(b) if there is no consent authority under paragraph (a) - the authority that would be the consent authority for the development but for this Policy,
(c) if there is no consent authority under paragraphs (a) and (b) – the council of the area in which the development is to be carried out,
(d) if there is no consent authority under paragraphs (a)-(c) – the Minister.

11 Other aquaculture development prohibited
Aquaculture development to which this Policy applies that is not permissible under this Policy with development consent is prohibited.

10 Schedule 1 of SEPP 62 contained the following clauses relating to the North Coast Region, which included the Tweed local government area. Part 2 (headed “Minimum performance criteria for permissible development”), Division 1 (headed “Site location requirements – North Coast Region”) included clauses 2, 4 and 7:

2 Zoning under environmental planning instrument
(1) Pond-based aquaculture – within areas zoned for rural purposes.
(2) Tank-based aquaculture – within areas zoned for rural purposes or zoned for industrial purposes.

4 Elevation Australian Height Datum (AHD) for tank-based aquaculture and freshwater pond-based aquaculture
(1) Within an area the mean elevation of which is above 1 metre AHD.
(2) In this clause, a reference to AHD is a reference to Australian Height Datum within the meaning of the Surveying Act 2002.

7 Conservation exclusion zones
Not within:
(a) areas dedicated or reserved under the National Parks and Wildlife Act 1974, or
(b) marine parks or aquatic reserves (other than areas designated as general use zones), or
(c) vacant Crown land (other than areas used only for access to water provided under a licence).

HISTORY

11 On 3 September 1999, the following declaration made on 3 August 1999 appeared in the Government Gazette:

I, the Minister for Urban Affairs and Planning, in pursuance of section 76A(7) of the Environmental Planning and Assessment Act 1979, having formed the opinion that the classes of developments listed in the Schedule to this Declaration are of State environmental planning significance, declare them to be State significant development.

This declaration takes effect on the day the declaration is gazetted.

One of the classes listed in the Schedule was:
An aquaculture industry if in the opinion of the consent authority,
1. the project has been identified as being of State or regional significance in a strategic plan adopted by the Director General; or
2. the project will employ more than 20 people; or
3. the project is to be located in an “environmentally sensitive area of State significance”.

12 On 15 November 2004, Bay Lobster lodged an application with the Minister seeking consent for development of an aquaculture facility and associated sea water supply works on privately owned land, Crown reserves and Council public reserves. The tanks and associated structures were to be on land in rural zones, but the sea water supply works and pipes connecting them to the tanks were on land in zones other than rural and industrial zones.

13 The statement of environment effects lodged with the application asserted that the proposed development would employ more than 20 people and was affected by SEPP 62, and identified it as State significant development that would require consent of the Minister in order to proceed.

14 Before this application was dealt with by the Minister, there was a series of statutory enactments occurring in about mid-2005.

15 On 25 May 2005, State Environmental Planning Policy (State Significant Development) 2005 (SEPP(SSD)) was introduced. This SEPP replaced a number of planning instruments concerning State significant development, but not SEPP 62.

16 On 27 May 2005, there was the second reading speech for the Bill which became the Environmental Planning & Assessment Amendment (Infrastructure & Other Planning Reform) Act 2005 (the 2005 Amending Act), which introduced a new Pt.3A to the EPA Act entitled “Major Infrastructure and Other Projects” and omitted provisions relating to State significant development including s.76A(7) and (8). The Minister in this speech referred to SEPP(SSD) and the purpose of cutting red tape in the assessment of infrastructure projects.

17 By 9 June 2005, the Bill for the 2005 Amending Act had passed both Houses of Parliament.

18 On 10 June 2005, the Government Gazette published the revocation of the declaration of 3 September 1999.

19 On 16 June 2005, the 2005 Amending Act was assented to.

20 On 30 June 2005, the Minister purported to grant development consent to Bay Lobster’s application. The determination document contained the following, under the heading “State Significant Development”:

Under Section 76A of the Environmental Planning and Assessment Act 1979, the development is classified as State Significant development by virtue of it being a development to which a declaration made by the Minister for Infrastructure and Planning relating to aquaculture development on 3 August 1999, applies.

21 On 1 August 2005, parts of the 2005 Amending Act, including Pt.3A and the repeal of s.76A(7) and (8) commenced. On the same day, an amendment to SEPP (SSD) commenced, which renamed it State Environmental Planning Policy (Major Projects), and generally replaced references to State significant development with references to projects to which Pt.3A of the EPA Act applies.

22 Transitional provisions concerning the 2005 Amending Act were inserted into Schedule 6 of the EPA Act, and relevantly included clauses 1, 87 and 89:

1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
…
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
…
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

87 Savings and transitional regulations
Regulations made under Part 1 of this Schedule have effect despite anything to the contrary in this Part.

89 State significant development matters
(1) If a development application for State significant development is pending on the commencement of Part 3A of this Act, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to this Act by Schedule 1 to the 2005 Amending Act had not been made.
(2) A reference in any Act or instrument to State significant development within the meaning of this Act is taken to be a reference to a project to which Part 3A of this Act applies.

23 Further transitional provisions were contained in the Environmental Planning and Assessment (Infrastructure and Other Planning Reform) Regulation 2005, published in the Government Gazette on 29 July 2005 and commencing 1 August 2005. These included cl.8J(5):

8J(5) If a development application is made after the commencement of Part 3A of the Act in respect of any development that, immediately before the commencement of Part 3A, was declared to be State significant development by notice in force under section 76A (7) of the Act, the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.

24 On 4 October 2005, Gales applied to the Land & Environment Court for a declaration that the purported consent of 30 June 2005 was void; and, pursuant to a concession by the Minister, a declaration to that effect was made on 7 December 2005. The Minister’s concession was made for the reason that the Ministerial declaration that aquaculture is State significant development had been revoked on 10 June 2005, and accordingly the Minister did not have power to determine the development application on 30 June 2005.

25 On 7 December 2005, there was Gazettal of the Environmental Planning & Assessment Amendment (Major Projects Transitional Provisions) Regulation, expressed to commence on the date of assent to the 2005 Amending Act, that is, 16 June 2005. Schedule 1 added cl.8J(6), (7) and (8) to the Environmental Planning & Assessment Regulation 2000:

(6) Clause 89 of Part 17 to Schedule 6 to the Act extends to development applications pending on the commencement of Part 3A of the Act for development that was State significant development on the commencement of the State Environmental Planning Policy (State Significant Development) 2005.

(7) If:
(a) a development application was made before the commencement of Part 3A of the Act on the basis that the development was State significant development, and
(b) the Minister is required to form an opinion that the development is State significant development in order to determine the application on that basis (but the Minister had not, before that commencement, formed an opinion on the matter),
the Minister may, after that commencement, form an opinion that the development was, at the time the application was made, State significant development. In that case, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.

(8) A development consent in force immediately before the commencement of Part 3A of the Act may be modified under section 75W of the Act as if the consent were an approval under that Part, but only if:
(a) the consent was granted with respect to development that would be a project to which Part 3A of the Act applies but for the operation of clause 6 (2) (a) of State Environmental Planning Policy (Major Projects) 2005, and
(b) the Minister approves of the development consent being treated as an approval for the purposes of section 75W of the Act.
The development consent, if so modified, does not become an approval under Part 3A of the Act

26 On 21 December 2005, the Minister again determined to grant consent to Bay Lobster’s application. This followed an Assessment Report dated December 2005 from the Department of Planning, and a Briefing Note originally dated 16 December 2005.

27 The former document discussed among other things compliance with SEPP 62, and noted that the majority of the development site, including the main site, complied with the requirement that tank-based aquaculture be located in areas zoned for rural purposes or industrial purposes, and also noted that the pump house and part of the proposed pipeline which was located on land owned by the Crown was not in contravention of cl.7 of Schedule 1 of SEPP 62. Section 4.1 of the Assessment Report was as follows:

4 STATUTORY PLANNING FRAMEWORK
4.1 Permissibility
The proposed development is located on land to which State Environmental Planning Policy No. 62 - Sustainable Aquaculture (SEPP 62) applies. Clause 7 of SEPP 62 states that a person may carry out aquaculture development with development consent if it complies with the site location and operational requirements set out in Schedule 1 of the SEPP for the development. Specifically, Schedule 1 of the SEPP sets out minimum performance criteria that a development must meet in order to make it permissible with consent.

A comparison of the proposal against the minimum performance criteria is included in Appendix A and reveals it complies with all criteria except 2(2) - zoning under environmental planning instrument. In this regard, 2(2) states that tank based aquaculture is permissible with development consent in rural and industrial zones. The subject site is variously zoned under the Tweed Local Environmental Plan 2000 (Tweed LEP) as part rural, part open space and part special uses. Accordingly, part of the development would ordinarily be prohibited. However, because the proposed development is State significant development and the DA is required to be determined under the State significant development provisions of the Act as they were in force prior to 1 August 2005, section 76A(8)(c) applies and the proposed development is permissible with consent.

28 The latter document contained the following notes under the heading “State significant development”:

· Notwithstanding the voided consent, the DA is extant and may be redetermined by the Minister as a result of savings and transitional amendments to the Environmental Planning and Assessment Regulation 2000 (the Regulation) and State Environmental Planning Policy (Major Projects) 2005 gazetted on 7 December 2005.

· The effect of these amendments, in particular new clause 8J(7) of the Regulation, is that the DA may be redetermined ''as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment (Infrastructure and other Planning Reform) Act 2005 had not been made".

· Accordingly, if the Minister forms the opinion that "at the time of lodgement the DA was for SSD", the DA can be determined as if the SSD provisions of the Act were still in force.

It concluded with the following recommendation:
It is recommended that the Minister:
a) note the information provided in the briefing note;
b) form the opinion that the proposed bay lobster aquaculture facility was State significant development at the date of lodgement of the DA;
c) consider the information and recommendations provided in the Department's assessment report dated December 2005 (tagged "G");
d) grant development consent to DA No. DA-282-11-2004-i, as submitted by Australian Bay Lobster Producers Pty Ltd under Section 80 of the Act, subject to the conditions (tagged "F"); and
e) sign the attached instrument of consent (tagged "F").

ISSUES

29 There were in substance three issues before the primary judge.

30 First, there was a question whether, assuming the matter could be dealt with under the regime as it existed before the changes made in mid-2005, the development was State significant development in relation to which the Minister was the consent authority. Central to this was the question whether SEPP 62 precluded this result, because some of the development was outside the permitted zones, or whether this was overcome by s.76A(7) and (8) of the EPA Act.

31 Second, if the first question was answered favourably to the application, there was the question whether the repeal of the previous regime (in particular, revocation of the 3 September 1999 declaration and/or the repeal of s.76A(7) and (8)) preclude the result; or was cl.8J(7) of the EPA Regulation sufficient to prevent this.

32 Third, assuming both the previous questions were answered favourably to the application, there was the question whether the Minister’s decision was otherwise a breach of cl.13 of SEPP 62, unreasonable, or an error of law.

33 The primary judge decided the first issue against the appellants, on the ground that s.76A(8) did not apply. He also decided the second question against the appellants, on the ground that the 3 September 1999 declaration had been revoked with effect some time before the commencement of Pt.3A of the EPA Act, so that cl.8J(7) did not enable the requirement of s.76A(7)(b)(iii) to be satisfied.

34 The primary judge accordingly found it unnecessary to address the third question.

35 On appeal, the first two issues are again raised. If those issues are decided favourably to the appellants, then the matter will need to be sent back to the Land & Environment Court to address the third issue.

FIRST ISSUE: POSITION UNDER THE PREVIOUS REGIME

36 The development for which consent was sought in this case did not fall within par.(a), par.(c) or par.(d) of s.76A(7) of the EPA Act, and so it could be State significant development only if it fell within par.(b) of s.76A(7), this requiring satisfaction of all three sub-paragraphs (i), (ii) and (iii).

37 Satisfaction of sub-paragraphs (ii) and (iii) could be supported by the 3 September 1999 declaration, while it was in force. This declaration expressed the Minister’s opinion that each of the defined classes of development was of State or regional environmental significance, and declared it to be State significant development. The development in this case would come within one of the defined classes if “in the opinion of the consent authority” one of three conditions was satisfied, the relevant one here being that “the project will employ more than 20 people”.

38 One difficulty with this that was identified in argument was that the consent authority for this development application would not be the Minister unless the application was for State significant development; so that unless and until the consent authority formed the opinion that the project will employ more than 20 people, the application would not be for State significant development, and the consent authority would be the local authority and not the Minister. Of course, if the application had been made to the local authority, and it had formed the opinion that the project will employ more than 20 people, then (assuming sub-paragraph (i) of s.76A(7) was also satisfied) that opinion (if effectual) would have the result that the local authority was not the consent authority; so that this opinion would then be made ineffectual, giving rise to a contradiction. And there would still be the need for an opinion by the entity that was in truth the consent authority.

39 In my opinion, the better view is that an application for a development on a scale that would employ more than 20 people and that otherwise satisfied the requirements for State significant development should be made to the Minister; and so long as the Minister forms the opinion that the project will employ more than 20 people, then it may be taken that the Minister is the consent authority, so that this opinion is the requisite opinion. This might be considered a boot-straps exercise, but it involves no contradiction; and in my opinion it must be what was intended by the declaration.

40 The same result could also perhaps be reached on the basis that the application is for something identified as and potentially satisfying all the requirements of State significant development, for which the consent authority is the Minister; so that the Minister is “the consent authority” for the purposes of any opinion necessary in order that the development in fact satisfy all the requirements for it to be, in the result, State significant development.

41 The main focus of the primary judge’s decision and the respondent’s submissions was sub-paragraph (i).

42 Mr. Robertson SC for Gales submitted that the application was for a development which did not meet the site and operational requirements for that development, in that the development was not within rural and industrial zones, so that the development was prohibited. It was not possible, he submitted, to regard part of the development as permissible with consent, because the pipes and sea water intake facilities were an essential and integral part of the development.

43 In my opinion, this submission should not be accepted. While it is true that the project required both the tanks and associated structures on the one hand, and the pipes and sea water intake facilities on the other, nevertheless the application was for consent to use of land for a purpose, namely for tank-based aquaculture; and use of land in the rural zones for this purpose was permissible with consent. I see no reason for denying that, to that extent, the application was for consent to development that may be carried out with development consent, within s.76A(7)(b)(i). As pointed out by Mr. Williams SC for the Minister, this is consistent with s.80(4) and (5) of the EPA Act, which expressly provide for consent being given to part of the development for which it is sought, and consent to other parts being given at later times, and the prohibition in SEPP 62 was against the background of partial prohibition recognised in s.76A(8).

44 Plainly the application was for consent to development for an aquaculture industry project capable of satisfying the requirements of the 3 September 1999 declaration; so the development for which consent was sought was, subject to the formation of the requisite opinion and to the extent that it was on land in rural zones, State significant development within s.76A(7)(b). The other development comprised in the project, namely the pipes and sea water intake facility, is then taken to be State significant development by reason of s.76A(8)(a); and s.76A(8)(c) then has the effect that it too can be carried out with consent. Accordingly, I would decide this issue favourably to the appellants.

45 Mr. Williams also advanced an alternative submission that the whole of the proposed development was permissible with consent, because the site requirements limited to rural and industrial zones in SEPP 62 related only to the site of the tanks and associated structures, not to the pipes and sea water intake facilities which, according to cl.7 of Schedule 1 to SEPP 62, could be outside such zones. It is not necessary to consider this question.

SECOND ISSUE: EFFECT OF REPEAL OF THE OLD REGIME

46 Following the revocation of the 3 September 1999 declaration, the requirement of par.(iii) of s.76A(7)(b) ceased to be satisfied; and accordingly the purported consent given by the Minister on 30 June 2005 was invalid. As noted previously, this was conceded by the Minister, and there was a declaration to that effect made on 7 December 2005. It seems probable that the introduction of cl.8J(7) on 7 December 2005 was intended to overcome the problems associated with the revocation of the 3 September 1999 declaration.

47 Whether or not it did so raises a number of sub-issues. It is common ground that the requirement of cl.8J(7)(a) was satisfied. However, the following questions remain:

(1) Was the Minister required to form an opinion that the development is State significant development in order to determine the application on the basis that the development was State significant development?
(2) Had the Minister not, before the commencement of Part 3A (that is, 1 August 2005), formed an opinion on the matter?
(3) Did cl.8J(7) then empower the Minister to give consent, notwithstanding the revocation of 3 September 1999 declaration on 10 June 2005?
(4) Was cl.8J(7), so interpreted, a valid exercise of regulation-making power?

WAS THE MINISTER REQUIRED TO FORM AN OPINION?

48 Mr. Williams submitted that, in order to determine an application on the basis that the development was State significant development, opinions of the Minister could be required, in particular, in the case of aquaculture, an opinion that the project will employ more than 20 people, and perhaps also in some cases an opinion that the development was of State or regional environmental planning significance within s.76A(7)(b)(i); and the Minister would also have to be satisfied he was the consent authority, requiring an opinion that the development was State significant development. The opening words of cl.8J(7)(b) referred in a compendious way to such opinions required for and constitutive of the ultimate opinion that the development was State significant development.

49 Mr. Robertson submitted that what was required, in order that the Minister determine the application on the basis that the development was State significant development, was that the development be State significant development, not the Minister’s opinion to that effect. Accordingly, the Minister’s opinion that the development was State significant development was not required, and the first part of cl.8J(7)(b) was not satisfied.

50 In my opinion, a provision such as this should be interpreted, if possible, so as to be effectual and not a futility; and Mr. Robertson’s submission would make it a futility. Accordingly, I would interpret the opening words of cl.8J(7)(b) in the way submitted by Mr. Williams.

HAD THE MINISTER FORMED AN OPINION?

51 Mr. Robertson submitted that he had. He must have formed the opinions that s.76A(7)(b)(i) was satisfied, the opinion that the project would employ more than 20 people, that the development was State significant development and that he was the consent authority, when he gave the purported consent on 30 June 2005.

52 Mr. Williams accepted that this was so, as a matter of fact; but submitted that what the words were referring to was not just an opinion as a matter of fact, but rather a valid and operative opinion, such as would make the application one for State significant development. He submitted that this was supported by the terms of cl.8J(6).

53 In my view, the ”opinion” referred to in cl.8J(7)(b) comprehends those opinions that are required for a valid determination, this meaning opinions that where necessary engage with the relevant statutory and regulatory framework so as to make the application one for State significant development; one such being an opinion engaging with the terms of the declaration of 3 September 1999. In my view, that is what the words before the parenthesis refer to; so in my view it is reasonable to give the words in the parenthesis the same effect. Although the Minister did, as a matter of plain fact, form an opinion that the project would employ more than 20 people, that was not an opinion required for valid determination of the application, because in the circumstances that opinion did not engage with the relevant statutory and regulatory framework. The relevant opinion that was required, that is one engaging with relevant statutory and regulatory framework, was not formed, because of the absence of the relevant framework. Accordingly, the Minister had not formed the opinion referred to in parenthesis in cl.8J(7)(b).

54 I accept that this interpretation does somewhat strain the words used in the clause. However, it does have support from cl.8J(6), which suggests that what cl.8J(7) is dealing with is applications for development which is not State significant development because of the absence of the required opinion. Further, in my opinion it is preferable because it does enable some effect to be given to the apparent purposes of the provision, including the purpose of overcoming the mischief that had arisen from the premature revocation of 3 September 1999 declaration, without appropriate transitional provisions at that time. It is unlikely that a mere subjective and ineffectual opinion should be made a criterion for the operation of that kind of remedial provision.

DOES CLAUSE 8J(7) OVERCOME THE REVOCATION OF THE 3 SEPTEMBER 1999 DECLARATION?

55 Mr. Williams submitted that, once paragraphs (a) and (b) of cl.8J(7) were satisfied, the time of making the application was specified as the relevant time at which the development must, according to the opinion of the Minister, be State significant development; and at that time, the 3 September 1999 declaration was in force. So once the Minister formed that opinion, as he did, the Minister was the consent authority to determine the application, which he could then determine as if the amendments made by the 2005 Amending Act had not been made.

56 Mr. Robertson submitted that cl.8J(7) required the application to be determined as if the amendments made by the 2005 Amending Act had not been made, that is, as at 31 July 2005; and at that time, the 3 September 1999 declaration had been revoked. Accordingly, the development could not, at the time as at which the application was to be determined, be State significant development and the Minster was not the consent authority. This view was confirmed by the status of the regulation as a regulation based on a power to make transitional provisions consequent on the passing of the 2005 Amending Act; so that all it could do was to preserve the status quo immediately prior to the commencement of that Act.

57 In my opinion, cl.8J(7) discloses a clear intention to make the relevant date for determination whether the development in question was State significant development (and thus to determine whether the Minister was the consent authority) the date of the application; and it does not contemplate a further question as to whether the development was State significant development, to be addressed either as at the date of determination of the application or 31 July 2005. If the Minister forms the opinions required for a conclusion that the application was, at the time it was made, for State significant development, then the Minister is the consent authority; and there is no need to revisit the question as at any later date.

IS CLAUSE 8J(7) VALID?

58 Mr. Robertson submitted that the only source of power to make that regulation was the regulation making power in the EPA Act, as amended by the 2005 Amending Act; and that regulation power was limited to the making of regulations, not inconsistent with the Act, consequent on the passing of the 2005 Amending Act.

59 Mr. Williams submitted that, prior to the passing of the 2005 Amending Act, there was an application on foot which could be determined by the grant of consent under s.76A(7), (8) and (9). It was open to the Minister to take measures to bring about the result that he could give consent, for example by making another declaration in similar terms to the 3 September 1999 declaration.

60 In my opinion, it can fairly be regarded as a transitional provision consequent on the passage of the 2005 Amending Act to give the Minister the means of determining, either favourably or unfavourably, an application that was on foot immediately prior to the commencement of the relevant part of the 2005 Amending Act, and which at that time could have been dealt with by the Minister either by refusing or granting consent, albeit that in order to grant consent the Minister would need to have published another declaration in the Gazette.. The matter could perhaps have been dealt with by a transitional provision empowering the Minister to make another declaration and then dealing with the matter as if the 2005 Amending Act had not been passed. The way that was selected and given effect to by cl.8J(7), involving the formation of an opinion that development was, at the time the application was made, State significant development, is in my opinion something that can be regarded as a transitional provision, consequent on the passage of the 2005 Amending Act.

CONCLUSION

61 For those reasons, in my opinion the following orders should be made:

1. Appeal allowed.
2. Respondent to pay appellants’ costs of the appeal, and to have a certificate under the Suitors’ Fund Act if otherwise eligible.
3. Matter remitted to the Land & Environment Court for further consideration.
4. Orders below set aside, including costs orders; and the costs of the proceedings below to be in the discretion of the judge hearing the remainder of the proceedings.

62 IPP JA: Hodgson JA observes that the development for which consent was sought could only be State significant development if it fell within para (b) of s 78A(7) of the Environment Planning and Assessment Act 1979 (the EPA Act) and for it to do so satisfaction of all three sub-paras (i), (ii) and (iii) of para (b) would be required.

63 The declaration of 3 August 1999 declared specific “classes” of development to be State significant development.

64 One of the classes listed in the Schedule was:

An aquaculture industry if in the opinion of the consent authority,
1. the project has been identified as being of State or regional significance in a strategic plan adopted by the Director General; or
2. the project will employ more than 20 people; or
3. the project is to be located in an “environmentally sensitive area of State significance”.

65 Upon the declaration of that class of development, the Minister became the consent authority for that class (s 76A(9) of the EPA Act).

66 Accordingly, where an application was made for the approval of a development of a “project” said to fall within that declared class, it was for the Minister (as consent authority for that class) to determine whether the project would employ more than 20 people.

67 Save as set out above, I agree with Hodgson JA.

**********