NEW SOUTH WALES COURT OF APPEAL
CITATION:
Minister for Planning v Walker [2008] NSWCA 224
This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S):
40893/07
HEARING DATE(S):
24 July 2008
JUDGMENT DATE:
24 September 2008
PARTIES:
MINISTER FOR PLANNING (Appellant)
Jill WALKER (First Respondent)
STOCKLAND DEVELOPMENT PTY LTD (ABN 71 000 064 835) (Second Respondent)
ANGLICAN RETIREMENT VILLAGES – DIOCESE OF SYDNEY (ABN 39 922 848 563) (Third Respondent)
JUDGMENT OF:
Hodgson JA Campbell JA Bell JA
LOWER COURT JURISDICTION:
Land & Environment Court
LOWER COURT FILE NUMBER(S):
40240/07
LOWER COURT JUDICIAL OFFICER:
Biscoe J
LOWER COURT DATE OF DECISION:
27 November 2007
LOWER COURT MEDIUM NEUTRAL CITATION:
Walker v Minister for Planning [2007] NSWLEC 741
COUNSEL:
DR J GRIFFITHS/ S DUGGAN (Appellant)
C E ADAMSON SC/ M H BAIRD/ C LEHEHAN (First Respondent)
Second Respondent (submitting appearance)
Third Respondent (submitting appearance)
SOLICITORS:
Christine Hanson, Legal Services Branch, Department of Planning (Appellant)
Environmental Defenders’ Office Ltd (First Respondent)
Herbert Geer & Rundle (Second Respondent)
John Frederick Whitehouse, Minter Ellison Lawyers (Third Respondent)
CATCHWORDS:
ENVIRONMENT LAW – Approval by Minister of concept plan pursuant to s 75O of the Environmental Planning and Assessment Act 1979 – Whether mandatory for Minister to consider the public interest – Whether mandatory for Minister to consider the principles of ecologically sustainable development – Whether approval void.
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979, ss 4, 5, 7, 75A, 75B, 75D, 75F-75Q, 75W, 75X, 79C
Environmental Planning and Assessment Regulation 2000, clauses 8B, 8C
Land and Environment Court Act 1979, s 39(5)
Protection of the Environment Administration Act 1991, s6
CATEGORY:
Principal judgment
CASES CITED:
Association for Berowra Creek Inc v Minister for Planning [2003] NSWLEC 38; (2003) 124 LGERA 99
Brayson Motors Pty Limited v Federal Commissioner of Taxation (1985) 156 CLR 651
Carr v Western Australia [2007] HCA 47; (2007) 82 ALJR 1
Deputy Federal Commissioner of Taxation (South Australia) v Ellis and Clark Limited (1934) 52 CLR 85
Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149
Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; (2002) 209 CLR 478
Gray v The Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258
The King v Hickman (1945) 70 CLR 598
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435
Notaras v Waverly Council [2007] NSWCA 333
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256
Tickner v Bropho (1993) 40 FCR 183
Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396
Walsh v Parramatta Council [2007] NSWLEC 255
Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710
TEXTS CITED:
DECISION:
(1) Appeal allowed.
(2) The orders made in the court below on 29 November 2007 be set…
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- AGLC
- Minister for Planning v Walker [2008] NSWCA 224
- Case
- [2008] NSWCA 224
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the Minister's approval of the concept plan under section 75O of the Act was void due to an alleged failure to consider the public interest and the principles of ESD. The court also considered the effect of amendments to the *Environmental Planning and Assessment Regulation 2000* (NSW) concerning mandatory considerations for the Director-General's report and the Minister's decision-making process.
The Court of Appeal allowed the appeal, setting aside the orders of the primary judge and dismissing the proceedings. The court reasoned that while the Director-General's report was required to include matters of public interest and ESD principles, the Minister's approval under section 75O was not rendered void by a failure to consider these matters. The court found that the statutory framework did not mandate that the Minister's approval itself be void for such omissions, distinguishing between the requirements for the Director-General's report and the Minister's ultimate decision-making power under section 75O. The court concluded that the primary judge had erred in finding the approval void.
Orders
Orders of the court
(1) Appeal allowed. (2) The orders made in the court below on 29 November 2007 be set aside. (3) The proceedings in the court below be dismissed. (4) Written submissions as to costs to be provided.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In conjunction with the introduction of these provisions of Part 3A, the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) was amended by the addition of Part 1A, which included clauses 8B and 8C: 8B Matters for environmental assessment and Ministerial consideration The Director-General’s report under section 75I of the Act in relation to a project is to include the following matters (to the extent that those matters are not otherwise included in that report in accordance with the requirements of that section): (a)an assessment of the environmental impact of the project, (b)any aspect of the public interest that the Director-General considers relevant to the project, (c)the suitability of the site for the project, (d)copies of submissions received by the Director-General in connection with public consultation under section 75H or a summary of the issues raised in those submissions.Note. Section 75J (2) of the Act requires the Minister to consider the Director-General’s report (and the reports, advice and recommendations contained in it) when deciding whether or not to approve the carrying out of a project. 8C Time limits for dealing with applications and other matters The following time limits are prescribed for dealing with applications and other matters under Part 3A of the Act: (a)The time within which the Director-General is to notify the proponent of environmental assessment requirements with respect to a project or concept plan is 28 days after the proponent requests the Director-General to prepare those requirements. (b)The time within which the Director-General is to accept the environmental assessment with respect to a project or concept plan, or require the proponent to submit a revised environmental assessment, under section 75H of the Act is 21 days after the environmental assessment is received by the Director-General. (c)The time within which the Director-General is required to send copies of submissions received or a report of the issues raised in those submissions to the proponent and others under section 75H (5) of the Act (or to notify the proponent that no submissions were received) is 10 days after the end of the public consultation period for the project or concept plan. Background The background to the proceedings was summarised by the primary judge as follows (in which Ms Walker is referred to as the applicant, and Stockland and Villages are referred to respectively as the second respondent and the third respondent): [13]By letter dated 30 October 2002, the Minister for Planning advised the local council that he had declared development at Sandon Point to be State significant under s 76A(7) of the EPA Act. This made the Minister the consent authority: s 76A(9). However, subs 76A(7) and (9) (inter alia) were repealed in 2005: Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005.[14]On 11 December 2002 the Minister for Planning issued a “Direction under s 119(1)(b)” of the EPA Act for a Commission of Inquiry to be held in accordance with s 119(1)(b) of the Act into certain land at Sandon Point. In the context of the applicant’s first ground of challenge it is necessary to consider its precise terms, as follows:I, the Minister for Planning, under s 119(1)(b) of the Environmental Planning and Assessment Act 1979, direct that a Commission of Inquiry be held in accordance with s 119 of the Act, into certain land at Sandon Point, in the Wollongong local government area, in accordance with the terms of reference described in the Schedule.[15]Those terms of reference were:To make recommendations on the preferred land uses, planning outcomes and management options for the land as shown edged heavy black on the map identified as Attachment A (dated November 2002), having regard to its values and constraints in the broader context of the surrounding urban and non urban environment.[16]That map showed land at Sandon Point, including the land which some years later became the land the subject of the application for concept plan approval with which these proceedings are concerned.[17]The Commission of Inquiry provided its report in September 2003. It found that residential development should be restricted to permit the outstanding cultural and ecological values of the site to be preserved. The Commissioners stated in their covering letter to the Minister:… the CoI area has significant inherent cultural, ecological and social values as indicated by the extensive evidence before the Commission. These values are too important to be compromised by the level of development proposed for residential purposes in Council’s draft DCP or Stockland’s draft Master Plan, notwithstanding the limited availability of land and the importance of providing for additional residential development in the northern Illawarra … The findings and recommendations in this report provide a strategic basis to implement sustainable coastal planning principles, protect significant Aboriginal heritage values, conserve and enhance ecological processes, ensure scarce employment opportunities are maintained, and enable an appropriate level of residential development.[18]On 23 May 2005, Charles Hill of Planning Workshop Australia was appointed by the Minister for Planning to provide an independent review of the findings and recommendations of the Commission of Inquiry. This review did not have any statutory status. Mr Hill’s report recommended a larger development footprint on the Sandon Point lands. Mr Hill recommended that rezoning for development should be allowed on terms that more than 60 percent should be left as open space and brought mostly into public ownership; and that some hectares towards the western boundary should be deemed suitable for medium density residential development, including aged care facilities.[19]On 12 December 2005, the Department of Planning wrote to Wollongong City Council advising that the Minister for Planning had agreed to consider Sandon Point as a potential State Significant Site under the Major Projects SEPP; that it was expected that a concept plan will be lodged under Pt 3A of the EPA Act; and that the Minister had agreed to consider both the rezoning and concept plan concurrently.[20]On 6 March 2006, HLA Envirosciences Pty Ltd wrote to the Department of Planning on behalf of the second and third respondents requesting the Minister to declare that the proposed development of Sandon Point was a “major project” pursuant to Pt 3A of the EPA Act (see s 75B). It submitted that the development fell within the class of development defined as “major projects” in cl 13 of the Group 5 class of development listed in Schedule 1 to the Major Projects SEPP viz: “Development for the purpose of residential, commercial or retail projects with a capital investment value of more than $50 million that the Minister determines are important in achieving State or regional planning objectives”. If the Minister determined that it was a major project, the letter requested that the Minister also authorise the lodgement of a concept application for the project.[21]On 2 April 2006, the Minister formed the opinion for the purposes of cl 6 of the Major Projects SEPP that the proposed development was of a kind described in Schedule 1 to the Major Projects SEPP and was thus declared to be a project to which Pt 3A of the EPA Act applies for the purposes of s 75B of the EPA Act. The record of that opinion was signed by the Minister and was in the following terms: I, the Minister for Planning, have formed the opinion that the development described in the Schedule below, is development of a kind that is described in Sch 1 of the State Environmental Planning Policy (Major Projects) 2005 — namely cl 13, Pt 5 — development for the purposes of residential, commercial, or retail projects with a capital investment value of more than $50 million that the Minister determines are important in achieving State and regional planning objectives — and is thus declared to be a project to which Pt 3A of the Environmental Planning and Assessment Act 1979 applies for the purpose of s 75B of that Act. In forming this opinion, I have also determined that pursuant to cl 13(1) of Sch 1 of the State Environmental Planning Policy (Major Projects) 2005 that the development described in the schedule below does satisfy State or regional planning objectives. ScheduleA proposal to subdivide the land for subsequent development of residential dwellings and construct a retirement development incorporating a residential aged care facility generally described in a letter dated 6 March 2006 from HLA-Envirosciences Pty Ltd (on behalf of the proponents Stockland and Anglican Retirement Villages).[22]On the same date, the Minister authorised the submission of a concept plan for the Sandon Point site under s 75M. [23]On 24 April 2006, the Director-General of the Department of Planning provided to HLA Envirosciences Pty Ltd the Director-General’s environmental assessment requirements with regard to the concept plan. This was in accordance with ss 75F(2) and (3), as applied by s 75N. One of the general requirements was “a draft Statement of Commitments, outlining environmental management, mitigation and monitoring measures”. The covering letter stated that once HLA Envirosciences Pty Ltd lodged its environmental assessment for the concept plan, it would be the subject of a test of adequacy to determine whether it satisfies the Director-General’s requirements. The letter requested that HLA Envirosciences Pty Ltd prepare a study to justify the inclusion of Sandon Point as a State Significant Site under the Major Projects SEPP. [24]On 15 June 2006, the second and third respondents submitted a concept plan for the project for the approval of the Minister under s 75O together with an Environmental Assessment for Major Project and State Significant Site Study. [25]By letter dated 19 June 2006, the Director, Strategic Assessments of the Department of Planning advised HLA Envirosciences Pty Ltd that the Environmental Assessment generally satisfied the Director-General’s requirements and that they had commenced the process of exhibiting the Environmental Assessment ( required by s 75H(3) as applied under s 75N). The letter also stated that the State Significant Site Study adequately addressed the matters in cl 8 of the Major Projects SEPP and the letter of 24 April 2006. The Environmental Assessment and the study were placed on public exhibition for comment. [26]In December 2006, the Director-General’s Environmental Assessment Report was prepared in accordance with the requirement of s 75(I) (applied under s 75N). It recommended to the Minister that: (a) approval be given to the concept plan subject to modifications; (b) rezoning of Sandon Point be pursued to give effect to the concept plan, given that Sandon Point is a matter of significance for the environmental planning of the State; and (c) approval to carry out development with a capital investment value of less than $5 million is, pursuant to s 75P(1)(b), to be dealt with under either Pt 4 or Pt 5. [27]The Director-General’s Environmental Assessment Report considered the Commission of Inquiry’s report and its 80 findings and recommendations. It summarised the four key issues found by the Commission of Inquiry and showed its recommended land use zoning. It also considered the Charles Hill report. It discussed “Key Issues” including creek design and flooding, aboriginal cultural heritage and flora and fauna. It included the following reports: (a) Volume 1: Overview report, Concept Plan Application Sandon Point, prepared by HLA Envirosciences Pty Ltd; (b) Volume 2: Environmental Assessment Report, Sandon Point, prepared by Don Fox Planning Pty Ltd on behalf of Stockland Developments Pty Ltd; (c) Volume 3: Environmental Assessment Report, Cookson Plibrico Site, Concept Plan Application for Anglican Retirement Villages, prepared by JBA Urban Planning Consultants Pty Ltd Appendix G to this report was a Flora and Fauna Assessment of the proposed Concept Master Plan prepared by Cumberland Ecology; (d) Volume 4: Sandon Point Submission to the Minister for Planning on a Planning Agreement for Infrastructure prepared by Don Fox Planning Pty Ltd and JBA Urban Planning Consultants Pty Ltd on behalf of Stockland Developments Pty Ltd and Anglican Retirement Villages.[28]On 21 December 2006, the Minister, having considered the Director-General’s Environmental Assessment Report, made the following determination: I, the Minister for Planning, under the Environmental Planning and Assessment Act 1979 (the Act) determine: (a) To grant approval, under s 75O(1) of the Act, the Concept Plan for the project as described in Sch 1, subject to the modifications set out in Sch 2. (b) That approval to carry out the remainder of the project or stages of the projects with capital investment value: (i)of $5 million or more is, pursuant to s 75P(1)(a), to be subject to Pt 3A of the Act; (ii)less than $5 million is, pursuant to s 75P(1)(b), to be subject to Pt 4 or Pt 5 of the Act; (c) That a development application for the project or that stage of the project under Pt 4 is to be generally consistent with the terms of the approval of the Concept Plan, under s 75P(2)(a) of the Act. [29]The challenge in the present case is to the validity of the approvals referred to in paras (a) and (b) of the Minister’s determination. [30]The project described in Sch 1 to the Minister’s determination comprised the following: a) on the second respondent’s land, subdivision into: (i)a maximum of 180 detached dwelling lots; (ii)a superlot to create up to 80 apartments; (iii)2 superlots for up to 25 town houses; (iv)potential for development of up to 285 dwellings on the proposed lots; b) by the third respondent: (i)a residential aged care facility of up to four storeys containing up to 120 beds; (ii)apartment buildings of up to three storeys containing up to 250 independent living units; (iii)community facilities and services to support residents of the retirement village.Decision of primary judge