Natural Grass at Norman Griffiths Inc v Ku-ring-gai Council

[2023] NSWLEC 84

Land and Environment Court

New South Wales

Medium Neutral Citation:

Natural Grass at Norman Griffiths Inc v Ku-ring-gai Council [2023] NSWLEC 84

Hearing dates:

2, 3, 4 and 9 August 2023

Date of orders:

11 August 2023

Decision date:

11 August 2023

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See paragraph 155

Catchwords:

JUDICIAL REVIEW – council determination to construct synthetic grass playing field and stormwater mitigation - s 5.5 of Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) – no failure of duty to inquire under s 5.5 – admissibility of expert evidence – construction of s 171A(4) of Environmental Planning and Assessment Regulation 2021 (NSW) – s 5.7 of EP&A Act – whether activity will significantly affect the environment – no failure to comply with s 5.7 – whether delegation duly exercised in approving the activity – summons dismissed

Legislation Cited:

Associations Incorporation Act 2009 (NSW)

Biodiversity Conservation Act 2016 (NSW)

Environmental Planning and Assessment Act 1979 (NSW)

Interpretation Act 1987 (NSW)

Local Government Act 1993 (NSW)

Environmental Planning and Assessment Regulation 2021 (NSW)

Cases Cited:

Barrick Australia Ltd v Williams (2009) 168 LGERA 43

Drake-Brockman v Minister for Planning (2007) 158 LGERA 349

Fullerton Cove Residents Action Group Inc v Dart Energy Ltd and Another (No 2) (2013) 195 LGERA 229

Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353

Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812

Palm Beach Protection Group Incorporated v Northern Beaches Council (2020) 250 LGERA 212

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

Prineas v Forestry Commission (NSW) (1983) 49 LGRA 402

Timbarra Protection Coalition Inc v Ross Mining NL (1998) 98 LGERA 211

Woolworths Ltd v Pallas Newco Pty Ltd (2004) 136 LGERA 288

Category:

Principal judgment

Parties:

Natural Grass at Norman Griffiths Inc (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
R White (Applicant)
A Stafford (Respondent)

Solicitors:
Jaku Legal (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/209950

Publication restriction:

No

JUDGMENT

Nature of proceedings

1. Natural Grass at Norman Griffiths Inc (the Applicant) challenges the decision of Ku-ring-gai Council (the Council) to construct a synthetic grass playing field and stormwater mitigation works at Norman Griffiths Oval (the Activity).

Facts

2. The Applicant is a community group incorporated under the Associations Incorporation Act 2009 (NSW).

3. The Council is the relevant determining authority.

4. Between 9 April 2019 and 15 February 2022, the Council held various Ordinary Meetings of Council in relation to the Activity, which eventually resulted in Norman Griffiths Oval (the Oval) being determined as the preferred location for the installation of a synthetic grass playing field and underground detention tank system for permanent flood mitigation.

Norman Griffiths Oval

5. The Oval, the subject of the dispute is Lot 6 in DP 564939 (previously 12308-191), being 30 Lofberg Road, West Pymble.

6. The Oval is a public reserve under the control of, or vested in, the Council.

7. The Oval is located within Bicentennial Park, which is classified as community land pursuant to the Local Government Act 1993 (NSW).

8. The Oval is within the Sydney Harbour Catchment.

9. Prior to the creation of the Oval, the site was used as a stone quarry and then for waste incineration. In 1969, the Council resolved to fill the quarry to create parklands, which was later developed to contain recreational spaces including sports fields.

10. The Oval is surrounded by established vegetation comprising remnant stands of Sydney Turpentine Ironbark Forest (STIF), a critically endangered ecological community listed under the Biodiversity Conservation Act 2016 (NSW). This vegetation provides habitat and bio-linkage opportunities for flora and fauna.

The Proposed Activity

11. In or around 2016, the Council commenced investigating the prospect of converting the Oval from natural grass to a synthetic grass playing field.

12. The Activity comprises removal of existing natural grass and construction of a synthetic grass playing field at a level above the 1% flood level, a stormwater mitigation system and associated works including landscaping, lighting, seating, pathways and an electronic scoreboard.

13. The synthetic grass playing field will comprise synthetic turf and an organic cork infill. The field will be surrounded by a 200mm high concrete kerb to prevent infill material from migrating off the field.

14. The proposed stormwater mitigation scheme consists of:

1. A gross pollutant trap (GPT) to be installed upslope of the field;

2. At the GPT, two 600mm pipes redirect stormwater to two Stormtech SC-740 chambers installed in a trench below the field;

3. An overland flow path around the perimeter of the Oval to the south is proposed to convey flood flows;

4. A gravel sub-base below the field approximately 30-50cm thick, which will receive rainfall on the field and stormwater from the Stormtech chambers, to serve as an on-site stormwater detention system; and

5. Drainage from the gravel sub-base is to be directed to a bioretention basin located along the western side of the Oval, in turn draining to Quarry Creek.

15. Various assessments have been undertaken in relation to the Activity, including:

1. Between November 2016 and October 2018, a flood assessment was undertaken by Jacobs Group (Australia) (Jacobs) after being engaged by the Council. The flood assessment report was published by Jacobs on 5 October 2018 based on a split detention basin concept design (Jacobs Report); and

2. On 4 June 2020, a flood risk investigation report was published by BMT to quantify the effect on flood behaviour that would occur if the Oval were upgraded to a synthetic grass playing surface (BMT Report).

16. On 14 February 2023, a Review of Environmental Factors (February REF) was prepared by Willowtree Planning (Willowtree).

17. On or about 13 March 2023, construction works commenced on the Oval.

18. On 4 July 2023, the Council published a further REF prepared by Willowtree dated 28 June 2023 (the REF). The REF included a number of appendices including Appendix 9 which was a report dated 3 February 2023 prepared by Optimal Stormwater Pty Ltd (Optimal) in relation to its independent review and hydraulic analysis of the existing and proposed stormwater system at the Oval (Optimal Report).

19. Proceedings were commenced by Summons filed on 30 June 2023. The Summons challenged both the February REF and the REF.

20. On 18 July 2023, the Amended Summons was filed.

21. At the hearing the Applicant indicated that its claim in the Amended Summons related only to the REF and did not challenge the February REF. In addition, the Applicant did not press Ground 4 of the Amended Summons.

22. This matter was fixed for hearing with a short timetable. The parties agreed that an early hearing of this matter together with the expectation of a judgment being delivered prior to the date of installation of the synthetic turf in the first week of September 2023 was desirable.

23. Acknowledging the degree of urgency in the delivery of my determination, I have focussed upon the parties’ submissions as to the grounds of challenge which were determinative of each ground and not proceeded to consider herein arguments that were otherwise made in addition or in the alternative to the determinative basis.

Ground 1 – Duty to inquire and relevance of expert evidence

24. Section 5.5(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) provides:

5.5   Duty to consider environmental impact

(1)   For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

25. The nature and scope of the duty imposed by s 5.5(1) were considered by Preston CJ of the LEC in Palm Beach Protection Group Incorporated v Northern Beaches Council (2020) 250 LGERA 212 (Palm Beach) where he observed at [260]:

260 A number of points can be made about the duty in s 5.5(1) of the EPA Act:

(a) The duty in s 5.5(1) is imposed “for the purpose of obtaining the objects of this Act relating to the protection of the environment” and has effect “notwithstanding any other provisions of this Act or the provisions of any other Act or any instrument made under this or any other Act”. Cripps J in F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1983) 51 LGRA 353 at 365-366 noted the importance of s 5.5 (then s 111): “It is difficult to over-estimate the importance of s 111. The real intention of the legislature is made evident from the terms of s 111 itself. Compliance with its requirements is … pivotal to a proper working of Part 5 of the EPA Act.” This statement was not disputed on appeal in F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) [1983] 3 NSWLR 282; (1983) 51 LGRA 369 and was later endorsed in Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 at 366; 415. Compliance with the duty under s 5.5 is mandatory, not directory: Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 at 366; 415; Jarasius v Forestry Commission (NSW) at 96.

(b)   The “activity” whose environmental impacts are to be considered by the determining authority is the particular activity proposed by the proponent: “The proponent must have the privilege of selecting what he proposed to develop”: Prineas v Forestry Commission (NSW) (Court of Appeal) at 164. Similarly, “the nature and scope of a particular activity was necessarily delimited by the way in which the body proposing to carry out the activity (the proponent) described it and stated its objects and the manner of achieving those objects”: Transport Action Group Against Motorways Inc v Roads and Traffic Authority at [154].

(c)   The duty is to “examine and take into account” the environmental impact of an activity. Both verbs require positive action by the determining authority. Examination of the environmental impact of an activity involves inspection, inquiry or investigation of the environmental impact (see Macquarie Dictionary definition). Taking into account involves not merely consideration of the environmental impact but also some responsiveness and reflectiveness to the environmental impact in the determining authority’s decision-making. In Willoughby City Council v Minister Administering National Parks and Wildlife Act (1992) 78 LGERA 19 at 29, Stein J observed: “The obligation imposed on a determining authority under s 111, to examine and take into account to the fullest extent reasonably practicable all matters likely to affect the environment, imposes a positive obligation to conduct a proper examination. It requires more than merely adverting to a relevant matter and this would be regarded as paying no more than ‘lip service’ to the obligation.”

(d)   The examination and taking into account of the environmental impact of an activity must be undertaken by the determining authority “in its consideration” of the activity: see, by analogy, Parramatta City Council v Hale (1982) 47 LGERA 319 at 339.

(e)   The phrase “to the fullest extent possible” sets a high standard, but one that is tempered by reasonableness, so that the phrase is to be read “as if the word ‘reasonably’ was inserted before ‘possible’”: Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 at 366; 415. See also Jarasius v Forestry Commission (NSW) at 96; Transport Action Group Against Motorways Inc v Roads and Traffic Authority at [68]; Oshlack v Rous Water at [32].

(f) The duty imposed by s 5.5(1) is not restricted to any time frame, at least in relation to a determining authority that carries out an activity. A matter affecting or likely to affect the environment that first came to the attention of a determining authority after it had commenced to carry out the activity could not be ignored on that account: Transport Action Group Against Motorways Inc v Roads and Traffic Authority at [70].

(g)   The “environment” affected or likely to be affected by the carrying out of the activity is not only the site on which the activity is to be carried out but also “the geographic location in which it is to be carried out and the area of which it is physically a part”: Kivi v Forestry Commission (NSW) (1982) 47 LGRA 38 at 47. It is permissible to go beyond the area in which the activity is proposed to be carried out and look at the whole undertaking of which the activity forms a part to understand the cumulative and continuing effect of the activity on the environment: Kivi v Forestry Commission (NSW) at 47; Jarasius v Forestry Commission (NSW) at 92; Bailey v Forestry Commission (NSW) (1989) 67 LGRA 200 at 212.

26. The Applicant in its Amended Summons asserts that there was a breach by the Council of a broadly expressed duty to inquire into the environmental impacts of the Activity as required by s 5.5 of the EP&A Act. The Applicant sought to adduce expert evidence relating to this duty. It sought to tender the evidence as evidence of what such inquiries should have been and what the outcome of such inquiries would have been.

27. The Applicant sought to rely upon expert evidence from Dr Wilson in connection with microplastics and Dr Martens in connection with stormwater and flooding.

28. Whilst objecting to the relevance of these reports the Council filed defensively reports from: Mr Bewsher (flooding and stormwater); Mr Buckley (pollution); and Dr Wotherspoon (ecology).

29. The parties agreed that as the admissibility of the expert evidence depended upon the outcome of the Applicant’s legal argument relating to the scope of the duty in s 5.5 of the EP&A Act it was appropriate that the expert evidence was admitted subject to relevance with the Court determining whether the expert evidence was relevant in the context of s 5.5.

30. In addition to the substantive consideration of Ground 1 of the Amended Summons, as a matter preliminary question, it is necessary to determine the admissibility of that evidence in order that the issues that arise in the Amended Summons may be determined.

Applicant’s submissions

31. The Applicant raised in its Amended Summons an allegation that the Council in its duty to examine pursuant to s 5.5 of the EP&A Act had a concomitant duty to inquire as to a number of particularised matters. When pressed in submissions the Applicant identified those inquiries as:

1. The requirement to undertake a pollutant load study as identified by Dr Wilson to assess microplastic pollution;

2. The requirement to undertake a flood study to understand the flood impacts on the area and whether the stormwater detention proposed as part of the Activity would function in the manner intended; and

3. The investigation and understanding of where the overland stormwater flow path would be located; and the investigation of the impact of the overland flow path upon the STIF.

32. In the Amended Summons these factors were said to be “information readily available and relevant to the determination to approve the Project: see Amended Summons at par 43. However, from the Applicant’s submissions it appears that what was intended was that such inquiries would involve the retention of relevant experts to provide opinions in connection with these matters.

33. The Applicant contended that the duty imposed by s 5.5 of the EP&A Act to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment” imposed a duty upon the determining authority to inquire. This duty was said to arise in the context of the statutory construction of s 5.5 insofar as that section contained the word “examine”. The Applicant sought to embrace the obiter of Pepper J in Fullerton Cove Residents Action Group Inc v Dart Energy Ltd and Another (No 2) (2013) 195 LGERA 229 (Fullerton Cove) at [144] (however, I extract the context of that obiter with the surrounding comments of her Honour at [142]-[145]) that:

142   The language of s 111 makes it plain, in my view, that the duty to consider to the fullest extent reasonably possible all matters affecting or likely to affect the environment by the activity in or to discuss the function of question extends to both a decision-maker’s duty to examine these matters and the duty to take them into account. That is to say, the duty must be exercised both at the examination stage and at the consideration stage in order to discharge the function of assessing the effect or likely effect on the environment of the activity in question. It is, in effect, two duties masquerading as one.

143   The duty to take into account to the fullest extent reasonably possible all matters affecting or likely to affect the environment is, on any view, to be assessed objectively by the Court on the material before the decision-maker. By analogy with the traditional ground of judicial review of failing to take into account a mandatory relevant consideration, extraneous evidence, including expert evidence, is not relevant to the judicial task of determining whether or not there has been compliance with this limb of the statutory duty contained in s 111.

144   More difficult, however, is the first limb of the duty contained in s 111, namely, the duty to examine to the fullest extent reasonably possible all matters affecting or likely to affect the environment. The verb “examine” is defined to mean, amongst other things, “to inspect or scrutinise carefully; inquire into or investigate” (The Macquarie Dictionary, online edition) or “to inquire or search into, investigate (a question or subject); to consider or discuss critically; to try the truth or falsehood of (a proposition, statement etc)” (Oxford English Dictionary, online edition). This strongly suggests, therefore, especially when the central importance of the section is recalled, and having regard to the context, scope and purpose of Pt 5, the factors listed in s 5A, and the objects contained in s 5 of the EPAA, that something analogous to a Prasad like duty to inquire is embedded within s 111. If this is so, expert or other extraneous evidence may be admissible to show what inquiries ought to have been made as a precursor to the examination exercise, and if they had been made, what those inquires would have revealed.

145   In formulating the duty contained in s 111 in this way it must be emphasised that this does not provide unfettered licence to litigants to adduce expert evidence in a bid to persuade the Court that the decision arrived at by a determining authority was wrong or, alternatively, to invite the Court to substitute its own decision for that of the decision-maker. An inquiry by the Court into whether a determining authority has complied with s 111 must not be permitted to turn into an examination of the merits of the decision.

34. The Applicant also noted that the extent of the duty to inquire was identified as the inspection, inquiry or investigation of the environmental impact: Palm Beach at [260(c)].

35. The Applicant accepted that it was not contending that the Council failed to take these matters into account or that in taking such matters into account the Council acted in a way that was legally unreasonable. The Applicant was limiting its claim in this respect to the Council failing to make the further inquiries to enable the assessment to be undertaken to the fullest extent reasonably possible.

36. The Applicant contended that whilst the Council had before it in the REF at Appendix 9 a flood report prepared by Optimal, the Council was not entitled to take that report at face value as:

1. The Optimal Report was on an issue so critical to Council’s understanding as to how the environment would be affected by the proposal;

2. On the expert evidence of Dr Martens, the modelling adopted in the Optimal Report was incorrect and there was a clear dispute between the Applicant’s expert, Dr Martens, and the Council’s expert, Mr Bewsher, as to the effectiveness of the on-site detention system (OSD system); and

3. The Optimal Report indicated schematically the location of the overland stormwater flow path without identifying the works that would be necessary to construct it.

These factors indicate that the Council did not have a proper understanding of the issues and that further inquiries were required to obtain that necessary understanding to enable it to take into account to the fullest extent reasonably possible the environmental impact of the Activity.

Council’s submissions

37. Ground 1 of the Amended Summons is a complaint that the Council did not comply with the duty in the first limb of s 5.5(1) of the EP&A Act: to examine likely effects on the environment from the activity to the fullest extent reasonably possible. “Examination” of the environmental impact of an activity involves inspection, inquiry or investigation of the environmental impact, taking account of the plain meaning of the term from the Macquarie Dictionary. However, it has been held that such a duty is tempered by reasonableness and practicability: Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 at 366 and 371. The duty is not a search for perfection: Drake-Brockman v Minister for Planning (2007) 158 LGERA 349 at [91]; Prineas v Forestry Commission (NSW) (1983) 49 LGRA 402 at 417 and 163, nor is it a search into the adequacy of the task undertaken as this would involve an allegation of unreasonableness (which is not alleged in the Amended Summons) and does not entitle the Applicant to challenge the merits of the inquiry.

38. In obiter in Fullerton Cove, Pepper J suggested that the word “examine” strongly suggested that “something analogous to a Prasad like duty to inquire is embedded within” the predecessor of s 5.5(1) of the EP&A Act. Her Honour had earlier in the judgment, by reference to Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 (Prasad), made it clear that the type of evidence relevant to an allegation of a failure to make inquiries is information that is readily available and relevant to the determination to be made (at Fullerton Cove [44]):

Thus material that was not before the decision-maker may be admissible if, for example, the ground of review pleaded is that of manifest unreasonableness; a failure to make inquiries where the decision-maker was under a duty to do so, revealing information readily available and relevant to the determination to be made (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [65]-[67])

39. In Prasad, the Federal Court made it clear that the duty arose only where it was obvious that relevant material was readily available and that any illegality in failing to inquire was an incident of Wednesbury unreasonableness:

The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.

40. It is to be noted that unreasonableness as a foundation for a breach of a duty to inquire above, is not alleged in Ground 1 at all, but the Applicant appears to be alleging some broader obligation to inquire where the unreasonableness of the decision-maker is not a prerequisite to making out a breach of the duty. There is no authority for such a broader duty to inquire.

41. Even adopting the obiter formulation as expressed in Fullerton Cove of a possible duty to inquire, such formulation was not at large and a full consideration of the reasons, makes it clear that any evidence (beyond the materials before the decision-maker) that might be relevant would be very limited; if there was such a duty, “expert or other extraneous evidence may be admissible to show what inquiries ought to have been made as a precursor to the examination exercise, and if they had been made, what those inquires would have revealed”. However, her Honour qualified this heavily in her observations at [145] (cited at [33] above).

42. Having regard to the type of duty in Prasad, these “inquiries” are not inquiries generally, but are inquiries into relevant material that was obviously readily available (as even the Applicant has identified in it formulation of Ground 1 in par 43 of the Amended Summons) – Prasad says nothing of commissioning specific reports or assessments – there is no obligation disclosed in Prasad to inquire in a particular manner or to a particular extent, except to the extent that the decision must not be unreasonable (in the sense that gives rise to legal error) in making inquiries.

43. In this context, the only evidence that can be potentially relevant to a duty to inquire is factual evidence as to what relevant material was readily available in the Prasad sense – not expert opinion evidence that includes a shopping list of further reports or assessments. It is not apparent that Pepper J was suggesting this type of expert evidence (now sought to be led by the Applicant) was admissible, but even so it is not apparent that expert evidence could be relevant even for the narrow purpose her Honour identified – it is a matter of fact not opinion whether there is other relevant information available.

Findings

44. This case is one of judicial review of the Council’s decision-making, and as such the Applicant bears an onus of establishing the case brought by it to the relevant civil standard.

45. It is a principle of judicial review proceedings that the Court tasked with determining whether the impugned decision was that was legally made, not whether the Court, if tasked with making that decision for itself it would arrive at the same conclusion. That is, proceedings such as these do not permit the Court to stray into a consideration of the merits of the decision as opposed to reviewing the legal adequacy of the decision made.

46. Such a principle requires an analysis of the legal scope of the decision-making power being exercised. In this case, the Applicant contends that the relevant statutory language in s 5.5 of the EP&A Act confers a duty to inquire. The Applicant appears to accept from the terms of its Amended Summons that such a duty is not at large, however, its submissions appear to traverse a broader duty.

Duty to inquire

47. The duty conferred by s 5.5 of the EP&A Act is to be defined by the statutory construction of that section having regard to the text and context of the provision. As has been accepted, the duty is not at large but is tempered by the concept of reasonableness. It is not open on such language, where the duty relates to taking a matter into account to the fullest extent reasonably possible, to suggest that in all circumstances a decision-maker has a duty to inquire. What the statutory language requires is an assessment as to whether the duty has been discharged having regard to the particular activity to which the decision-making relates, and the quality of the decision-making undertaken.

48. The obiter in Fullerton Cove does not contend that there is a general duty to inquire but rather identifies that the extent and scope of the consideration will vary depending upon the activity as proposed and the likely environmental impacts of undertaking such activity. However, it also identifies that if there is asserted some duty to inquire such a contention must be determined in the context of the statutory language. Namely, where such inquiry was not made was such “failure” outside the inherent constraint on the duty to consider to the fullest extent of “reasonably” possible. This approach is consistent with the decision in Prasad and the statutory language. I do not consider the obiter to have changed the otherwise accepted position as identified in Prasad and as identified in the statutory language of s 5.5 of the EP&A Act that the performance of the duty is activity-based and one that is to be assessed in the context of whether the examination of the likely environmental impacts was legally reasonable.

49. Whilst the Applicant has not pleaded Wednesbury unreasonableness as an express ground of challenge, the context of the statutory language imports the concept of reasonableness. In the context of judicial review such a consideration requires an assessment as to whether the asserted breach of any duty to inquire relates to whether or not such information was within the scope of being “reasonably possible” – or to put it another way, whether it was unreasonable in the legal sense not to make the asserted inquiry.

Admissibility of expert evidence

50. The evidence of Dr Martens and Dr Wilson that was sought to be tendered to establish the duty to inquire in the circumstances of this case should be rejected. In judicial review proceedings the relevant task is the consideration of the decision made by the decision-maker. To the extent that a challenge is made on the basis that the decision-maker should, acting reasonably, have made some additional inquiries, expert evidence as to what those inquiries should have been and what the outcome of those inquiries would have been is, in some cases, admissible. In this case, neither the evidence of Dr Martens or Dr Wilson related to such considerations.

51. It was submitted that the evidence of both witnesses was evidence of what information was readily available and relevant to the Council’s determination if inquiries had been made. However, each of these reports did not identify what inquiries should have been made, rather was a critique of the substance of the result of inquiries that either had been made or advice that would have been received on the basis of alternative assumptions being adopted in the consideration of the assessment of environmental impacts.

52. First, dealing with the evidence of Dr Wilson who holds qualifications and experience in ecotoxicology and water pollution and has experience in microplastics. Dr Wilson observed that the field of microplastic research has reached the point where there is no longer any doubt of widespread exposure of animals and humans to plastic particles.

53. Dr Wilson’s evidence was that there was an assumption in the REF that the design of the Activity would fully mitigate all loss of microplastics and associated chemicals to the environment and the Activity would not achieve 100% capture of microplastics. In order to ensure the assumed design capture of 100%, the REF should have included a potential pollutant load assessment associated with the synthetic grass playing field and associated downstream water quality monitoring. Whilst the REF had included some mitigation measures it would not stop 100% of loss.

54. The report of Dr Wilson does not indicate an inquiry which would produce information readily available to the Council relating to the Activity as proposed, rather it identifies an assumption of 100% loss and expresses opinions as to whether the Activity will achieve that assumed capture rate. On the evidence contained in the REF there is no indication of a 100% design capture rate, rather it sets a goal of minimising microplastic loss from the Activity and identifies the measures to be adopted to achieve such goal.

55. Dr Wilson’s suggestion of a pollution load assessment is not linked to a necessary assessment to understand pollutant loads, rather to identify whether the 100% capture rate has been achieved. Again, I do not consider this report assists in the relevant question to be determined in Ground 1 of the Amended Summons.

56. As to the evidence of Dr Martens, his report too does not identify an inquiry which would produce information readily available to the Council, rather it critiques the findings of an inquiry made by the Council.

57. The REF identified the need to consider the flooding and stormwater impacts of the Activity. To undertake that task, it obtained expert advice from Optimal. Dr Martens’ report details the reasons why he would have had concerns with the Optimal Report based upon his expert assessment of the opinions expressed therein. This analysis is an assessment of the merits of the proposal and not an identification of any reasonable inquiry that a reasonable decision-maker would make over and above the examining of the Optimal Report.

58. As to the submission that expert evidence sought to be adduced relates to the nature of the inquiries that could be made and the outcome of those inquiries is to be rejected. Although the Council sought to formulate the evidence to accord with these constraints, the evidence was, in substance, an expression of opinion as to whether one expert witness would agree with the opinions of another, or to be put it another way, evidence that invited an assessment of the merits of the proposal.

59. This was not evidence that identified that there was material available to the Council, it was evidence that material was able to be commissioned, undertaken in the application of some field of expertise, and an opinion expressed. Such is not that which was identified in Prasad nor that to which the obiter in Fullerton Cove referred as being admissible in judicial review proceedings.

60. Further, the argument is circular in that it is said that the expert material is necessary to understand that if the inquiry was undertaken and expert material was provided it would (depending upon the expert retained) have the potential to indicate that there is a difference of opinion as to the experts on the performance of the system as designed. One cannot assert that the Council should have made inquiries on the face of the Optimal Report by identifying an opinion of another expert (which material was not available to the decision-maker) to identify the contended deficiency that should have given rise to the duty to inquire because the Optimal Report should not have been taken “at face value”.

61. For those reasons, the reports of both Dr Martens and Dr Wilson are not relevant to the determination of Ground 1 of the Amended Summons and will be rejected on that basis. As a consequence, so too the evidence tendered by the Council.

Failure of duty to inquire

62. As to flooding and stormwater, it is uncontroversial that the Council had a flood assessment and stormwater assessment in the Optimal Report. The summary contained within that report stated at Appendix 9 of the REF:

Review of Stormwater Management System (Hydraulic Assessment)

Optimal Stormwater has completed an independent review and hydraulic analysis of the existing and proposed stormwater system at Norman Griffiths Oval.

Summary

The hydraulic analysis confirms the proposed stormwater system meets Council’s requirements for stormwater management. Hydrologic and hydraulic assessment of the proposed underground On-Site Detention (OSD) shows a neutral or beneficial impact compared with the existing above-ground detention basin.

In the 100-year storm event (1% AEP), excess flow is conveyed along the overland flow path around the Norman Griffiths Oval to Quarry Creek. The depth and velocity of overland flow is considered safe, and the flow path does not require turf reinforcement.

In the 100-year storm event, the OSD reaches ~90% capacity (2.4ML) and effectively reduces the peak flow.

63. The Optimal Report makes it plain that it analysed the existing and proposed stormwater systems at the Oval. That report on its face was undertaken by a person with appropriate qualifications. The opinions expressed therein were not qualified in terms of reliability. The assessment undertaken related to both the capture of upstream stormwater and flood flows in both low probability and high probability events. The Optimal Report considered the capacity of the OSD system as proposed to accommodate each of the relevant probability events. It determined that the proposed system was capable of operating in the manner and to the specifications it was designed. In those circumstances, there was nothing on its face that would cause a decision-maker to consider that the opinions expressed were not reliable or not properly formed. In those circumstances, the suggestion that the Council was not entitled to take “at face value” the terms of the Optimal Report has no foundation.

64. As to the suggestion that the issue of flooding and stormwater was critical to a proper assessment of environmental impact such a general proposition is reflected in the approach taken in the REF. Flooding and stormwater were identified as likely impacts and assessed through the consideration of material including the Optimal Report. The mere fact that the subject matter is important does not, of itself, give rise to a need to obtain, in effect, a second or third opinion of the adequacy of the first opinion.

65. The submission relating to the assessment of the overland flow path as a hydraulic element and the potential for such flow path to have an impact on the STIF, I am not satisfied that such features warranted further investigation or analysis over and above that which was undertaken in order for the Council to have fulfilled its duty under s 5.5 of the EP&A Act.

66. First, as to the location and extent of the overland flow path, such a path was in existence and operated as a flow path in the situation before the carrying out of the Activity. Such overland flow path was unconstructed and followed the natural features of the land. Accordingly, as is apparent from the Optimal Report Summary recited at [62] above, the overland flow path formed part of its “independent review and hydraulic analysis”. Optimal calculated that the velocity x depth of stormwater in that flow path and determined both safety and whether any additional earthworks (or other works) were required to accommodate such flows. The earthworks plan that accompanied the REF showed no earthworks in this location. On that basis, the Council was not required to examine this issue further.

67. As to the impact on the STIF, the REF included at Appendix 15 an ecological assessment that stated the following:

4.2.3 Hydrology

The Proposal will have a low impact on the surface hydrology across the Subject Site due to the removal of lawn vegetation, reducing root extraction of water through the soil profile. However, given that the Subject Site occurs at a lower elevation than the surrounding CEEC, and with the construction of the stormwater mitigation system as part of the Proposal, this will likely result in a minor impact to the surrounding CEEC. An Assessment of Significance (5-part Test) under the BC Act (Appendix D), and Assessment of Significant Impact Criteria under the EPBC Act (Appendix E) concluded that this potential indirect impact will not significantly impact the CEEC.

The synthetic turf field may increase pollutants such as microplastics and chemicals entering the stormwater system and impacting connecting waterways. However, stormwater design strategies have been adopted to minimise this risk (Willowtree Planning, 2022).

68. The ecological report identified that it had considered the flooding and stormwater component of the Activity. This opinion, unqualified, does not indicate a need to obtain further ecological advice as to the impact upon the STIF of the overland flow path.

68. As to microplastics, the REF acknowledged that synthetic grass has the capacity to impact upon the environment by the transportation of microplastics into the environment. In light of that understanding, the REF acknowledged that the Activity had, as one of its design goals, the minimisation of microplastic pollution. It incorporated mitigation measures including:

1. The elevation of the surface of the Oval above the 1% flood event to reduce transportation of the synthetic grass by stormwater;

2. A GPT and bioretention basin;

3. A 200mm concrete kerb;

4. Devices to capture synthetic grass from shoes, vehicles and clothing leaving the turfed part of the Oval; and

5. Maintenance regimes to minimise transportation of the concrete surrounding the Oval.

70. None of these features were contended by the Applicant not to reduce microplastic pollution on the environment or identify any further inquiry that should reasonably have been made in addition to the design goals and features of the Activity that would have been necessary to enable the environmental impact to be assessed. Nor has the Applicant identified any basis on which a goal of a higher rate of microplastic amelioration should be adopted.

71. In those circumstances, the Applicant has failed to demonstrate that contrary to the duty imposed by s 5.5 of the EP&A Act that the Council failed to make an inquiry to enable it to take into account to the fullest extent reasonably possible the impacts of the Activity upon the environment.

72. Accordingly, the Applicant has not established a failure by the Council to satisfy the duty in s 5.5 of the EP&A Act and Ground 1 must fail.

Grounds 2 and 3 – Failure to take into account to the fullest extent all matters affecting or likely to affect the environment with respect to microplastic pollution and stormwater

73. In its submissions the Applicant conceded that if the Council had examined the environmental impacts of the proposal to the fullest extent reasonably possible (that is, dismissed Ground 1). Grounds 2 and 3 were unable to be separately pressed. It further conceded that even if Ground 1 was established, Grounds 2 and 3 were not necessary as the decision-making would have been flawed: see Tcpt, 7 August 2023, p 176(32-50) – 177(1-12); Tcpt, 7 August 2023, p 194(30-50) – 195(1-16).

74. Accordingly, in light of my findings in respect to Ground 1 or alternatively the concession as to the utility of Grounds 2 and 3 I need make no determination of these Grounds as particularised in the Amended Summons.

Ground 5 – Failure to take into account cl 171A of the Environmental Planning and Assessment Regulation 2021 (NSW)

75. It was an agreed fact that the Oval was located within the Sydney Harbour Catchment as defined. It was also an agreed fact that the Oval was not within a Foreshore and Waterways Area as defined.

76. By reason of the Oval’s location within the Sydney Harbour Catchment, the Council was required to take into account the matters referred to in cl 171A(4) of the Environmental Planning and Assessment Regulation 2021 (NSW) (the Regulations):

171A   Activities in catchments—the Act, s 5.10(a)

…

(4)   When considering the likely impact on the environment of an activity proposed to be carried out in the Sydney Harbour Catchment, the determining authority must, in addition to the matters referred to in subsection (1), take into account the matters a consent authority must consider under State Environmental Planning Policy (Biodiversity and Conservation) 2021, section 6.28(1).

…

77. Section 6.28(1) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) relevantly provides:

6.28   General

(1)   In deciding whether to grant development consent to development in the Foreshores and Waterways Area, the consent authority must consider the following—

(a)   whether the development is consistent with the following principles—

(i)   Sydney Harbour is a public resource, owned by the public, to be protected for the public good,

(ii)   the public good has precedence over the private good,

(iii)   the protection of the natural assets of Sydney Harbour has precedence over all other interests,

(b)   whether the development will promote the equitable use of the Foreshores and Waterways Area, including use by passive recreation craft,

(c)   whether the development will have an adverse impact on the Foreshores and Waterways Area, including on commercial and recreational uses of the Foreshores and Waterways Area,

(d)   whether the development promotes water-dependent land uses over other land uses,

(e)   whether the development will minimise risk to the development from rising sea levels or changing flood patterns as a result of climate change,

(f)   whether the development will protect or reinstate natural intertidal foreshore areas, natural landforms and native vegetation,

(g)   whether the development protects or enhances terrestrial and aquatic species, populations and ecological communities, including by avoiding physical damage to or shading of aquatic vegetation,

(h)   whether the development will protect, maintain or rehabilitate watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity.

78. There was a dispute on the proper construction of cl 171A of the Regulations as to whether in the circumstances of this case the Council was required to consider the provisions of s 6.28 of the Biodiversity SEPP. Further, if so required, whether such considerations were taken into account; or if not, whether the failure to do so was material in the relevant sense.

Applicant’s submissions

79. The Oval is within the Sydney Harbour Catchment, as such, the Council was legally required to take into account the matters referred to in cll 171A(1)(a)-(b) and 171A(4) of the Regulations. These include the matters that a consent authority must consider under s 6.28(1) of the Biodiversity SEPP. Those matters include:

(a)   whether the [activity] is consistent with the following principles-

(i)   Sydney Harbour is a public resource, owned by the public, to be protected for the public good,

(ii)   the public good has precedence over the private good,

(iii)   the protection of the natural assets of Sydney Harbour has precedence over all other interests,

…

(e)   whether the [activity] will minimise risk to the development from rising sea levels or changing flood patterns as a result of climate change, (sic)

…

(h)   whether the [activity] will protect, maintain or rehabilitate watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity.

80. The Council in its response to the Amended Summons at par 41(d)(iii) pleaded that s 6.28(1) of the Biodiversity SEPP was not relevant to the Activity because the Oval was not within the “Foreshores and Waterways Area”. Whilst it is correct that the Oval is not so located, the Council’s interpretation of cl 171A(4) of the Regulations is incorrect as a matter of statutory construction.

81. The construction of cl 171A(4) of the Regulations commences with a consideration of the words of the provision itself. The s 6.28(1) factors are mandatory matters required to be considered whenever an activity is proposed to be carried out in the Sydney Harbour Catchment; that is made clear by the chapeau to cl 171A(4) itself. Had Parliament intended to limit the effect of the clause to activities being carried out within the Foreshores and Waterways Area only, it would have said so. Instead, the text demonstrates that it has deliberately decided to import the s 6.28(1) considerations into the assessment process for activities taking place within the wider area of the Sydney Harbour Catchment.

82. The REF expressly states at Folio 47 that:

The site is not located in relevant mapped areas, including:

* Special area under the Water NSW Act 2014

* Sydney Drinking Water Catchment

* Sydney Harbour Catchment, Foreshores and Waterways Area

As the activity is not being undertaken in the above mapped areas, clauses 171A(2), (3) and (4)of the EP&A Regulation - Activities in catchments do not apply.

Further to mitigation measures provided in Table 2 and Table 3 above, more detailed mitigation measures to be employed in all phases of the development are provided in Part F of this REF.

83. The Council was clearly of the view that that cl 171A(4) of the Regulations did not apply. On this basis, the Court would find that there was no consideration of the relevant s 6.28(1) factors.

Council’s submissions

84. Subclause 171A(1) of the Regulations provide that when considering the likely impact on the environment of an activity proposed to be carried out in a regulated catchment, a determining authority must take into account certain matters that a consent authority would be required to consider, or of which a consent authority must be satisfied, under ss 6.6 to 6.9 of the Biodiversity SEPP. It is not in dispute that the Activity is proposed within a regulated catchment. Subclause 171A(4) has a similar requirement in respect of an activity proposed to be carried out in the Sydney Harbour Catchment, in respect of s 6.28(1) of the Biodiversity SEPP. It is not in dispute that the Activity is proposed within the Sydney Harbour Catchment, but the Activity is not within the Foreshores and Waterways Area within the meaning in s 6.28(1) of the Biodiversity SEPP.

85. Subsection 6.28(1) of the Biodiversity SEPP is not relevant to the Activity (as the REF identifies) because, while the subject site is within the Sydney Harbour Catchment for the purpose of cl 171A(4) of the Regulations, the subject site is not within the “Foreshores and Waterways Area” within the meaning of s 6.28(1) and Part 6 of the Biodiversity SEPP. Section 6.28(1) of the Biodiversity SEPP only applies to activities within that area because:

1. The section is literally limited to the “Foreshores and Waterways Area” in the chapeau;

2. It is in the Division headed “Development in Foreshores and Waterways Area”;

3. A number of the subsections make it clear that the considerations are only intended to be relevant in the “Foreshore and Waterways Area” – for example, ss (b)-(f); a construction that would see the section applied to the whole of the broader Sydney Harbour Catchment would be absurd, having regard to the line on the Sydney Harbour Catchment Map, because it would apply to land that is kilometres from any watercourse, to which the section was plainly not intended to apply;

4. The objective intention of cl 171A(4) of the Regulations is to require the determining authority to consider matters a consent authority would have to consider if the Activity had been Part 4 development – plainly for Part 4 development this clause only applies to the foreshores area; and

5. Clause 171A(4) of the Regulations mirrors the effect of s 6.1 of Part 6 of the Biodiversity SEPP, insofar as it directs determining authorities to s 6.28(1) if the subject site is within the Sydney Harbour Catchment, but one still has to ask whether the site is within the “Foreshore and Waterways Area” within the chapeau to s 6.28 to determine whether those considerations apply.

Findings

86. The determination of this question turns upon the proper construction to be given to the provisions of cl 171A of the Regulations and the application of those words to s 6.28 of the Biodiversity SEPP. The dispute relates to whether, on a proper construction, the Council was required to take into account the provisions of s 6.28 of the Biodiversity SEPP when in terms those considerations were limited to considerations of land of a specific category in circumstances where the Oval was not so categorised.

87. In considering the text of cl 171A of the Regulations it directs that the Council must “consider the matters a consent authority must consider”. The reference in those words to a consent authority is a reference to a determination of a development application made under Part 4 of the EP&A Act. The text appears to limit the requirement of a determining authority to consider under a Part 5 assessment only those matters that a consent authority would be obliged to consider. When regard is had to the text of s 6.28 of the Biodiversity SEPP those considerations are only required to be considered where the proposal is in the “Foreshores and Waterways Area”.

88. The question then arises whether the statutory intention was to limit the consideration of s 6.28 of the Biodiversity SEPP or whether, as cl 171A of the Regulations applied to activities proposed to be carried out in the Sydney Harbour Catchment it is intended to apply to land so categorised even where the land is not categorised as “Foreshores and Waterways Area”. From a consideration of the objects of the EP&A Act and accepting the formulation of the object of s 5.5 as identified in Palm Beach at [260(a)] as recited at [25] above, the goal is to assess environmental impact. It is apparent from the terms of s 6.28 that there is considered to be specific environmental impacts that relate to land proximate to the waterway and foreshores of Sydney Harbour. An assessment of an activity in such an area would give rise to such considerations. However, the Sydney Harbour Catchment is a much broader area and included land well distant from the waterbody and foreshores of the Sydney Harbour. The potential environmental impacts of activities in those areas as it relates to the catchment of the Harbour, such as water quality and aquatic ecology were required to be considered in the preceding sections comprising ss 6.6-6.9. There is no apparent purpose to be served so as to achieve the object or purpose of either the EP&A Act as a whole or s 5.5 that would support a finding that it was intended that for a Part 5 assessment the impacts on the Harbour would require a consideration of s 6.28 in circumstances where the assessment of the environmental impact of a Part 4 proposal would not.

89. The specific terms of s 6.28 of the Biodiversity SEPP make it plain that the considerations are specific and limited to the waterbody and the foreshore. It would be inconsistent with both the text and the purpose to require as a matter of statutory construction that such a section be considered under cl 171A of the Regulations where such land is not categorised as the “Foreshores and Waterways Area”.

90. The limitation adopted in the text of cl 171A of the Regulations that the considerations are of the matters a consent authority must consider must be given work to do in the context. If it was intended that the considerations would be required notwithstanding the categorisation of the land those words would not have been required and the terms of cl 171A would not have required those words to be incorporated in the statutory language.

91. For those reasons, Ground 5 must fail.

Ground 6 – Failure to comply with s 5.7(1) of the Environmental Planning and Assessment Act 1979 (NSW)

92. Section 5.7(1) of the EP&A Act provides:

5.7   Decision of determining authority in relation to certain activities

(1)   A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment, unless—

(a)   the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity—

(i)   prepared in the prescribed form and manner by or on behalf of the proponent, and

(ii)   except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner,

…

93. Such a provision contains within it two obligations, first to determine whether the Activity has a significant effect on the environment and secondly, if so, to not carry out the Activity or grant an approval until it has obtained and considered an environmental impact statement (EIS): see Palm Beach at [257]:

257 …The duty in s 5.7(1) is two fold. The first is an implied duty to determine whether an activity is likely to significantly affect the environment. This implied duty is always applicable. The second is an express duty, triggered by an affirmative answer to the threshold question required to be asked by the implied duty. If an activity is likely to significantly affect the environment, the determining authority is under an express duty not to carry out the activity or grant an approval to the activity unless it has obtained or been furnished with, and has examined and considered, an EIS in respect of the activity.

Evidence

94. In support of this Ground, the Applicant relied upon the evidence of Dr Martens dealing with stormwater and flooding. In addition, the Applicant submitted that the evidence of the two earlier flood and stormwater reports prepared by Jacobs and BMT were relevant to the determination of this Ground.

95. Whilst the Applicant had initially relied upon the evidence of Dr Wilson with respect to this Ground, in closing submissions it was not contended that the Court would determine for itself that microplastic pollution generated by the Activity would have, or would likely have, a significant effect on the environment. Accordingly, a consideration of Dr Wilson’s evidence is unnecessary in this context.

Applicant’s submissions

96. The REF itself failed to address, or even mention s 5.7 of the EP&A Act; never assessed the Activity in connection with s 5.7; and did not address whether the Activity as a whole was likely to significantly affect the environment. The Council failed to discharge its implied duty pursuant to s 5.7 and the decision must be quashed.

97. Alternatively, if, contrary to the above submission, the Court is satisfied that the Council did comply with its implied duty and has, therefore, passed the threshold question, the issue of whether the Activity is likely to significantly affect the environment is a jurisdictional fact that the Court must determine for itself on the evidence: Palm Beach at [261(b)]. In this regard, the Applicant relies upon the evidence of Dr Martens who opines that the Activity is likely to significantly affect the environment.

98. The Applicant contended that the Court would be satisfied that the environmental impact of the Activity was one that significantly affected the environment and, thus, required the provision of an EIS.

99. In submissions the Applicant formulated this Ground on three bases:

1. If the Court found on the evidence that there was a prospect that the flood mitigation scheme being an integral part of the Activity did not work as asserted by the manufacturer either in not acting as an OSD system or not sufficiently capturing the overland flows the Court would find, on the evidence, that the proposal was likely to significantly affect the environment;

2. If the Court found on the evidence that the OSD system would not work as designed the infill and microplastics will not be sufficiently captured or retained on-site and will be washed down into the receiving environment, including Quarry Creek; and

3. A separate impact which has not been assessed from the overland flow path, which is the water diverting to the south in the flow path and then discharging into Quarry Creek and the potential impacts on the adjoining STIF and Quarry Creek from that overland flow.

Council’s submissions

100. The Council contended that the question was not properly a jurisdictional fact. However, even if it was a jurisdictional fact, the Court could not on the evidence be satisfied that there would be a significant effect on the environment on any basis as asserted by the Applicant.

101. In Fullerton Cove, Pepper J found that s 5.7(1) of the EP&A Act gave rise to a jurisdictional fact that the Court must determine for itself on all the available evidence, including the expert evidence tendered by the parties, as to whether or not the Activity is likely to significantly affect the environment. In circumstances where there were pre-1999 single Judge decisions (recognised by her Honour) that stood for the proposition that the question was one for the determining authority (acting reasonably) and not the Court, it is not at all apparent that Fullerton Cove is binding. However, in Palm Beach Preston CJ of the LEC applied Fullerton Cove without reference to the pre-1999 decisions, and his Honour himself considered whether an EIS was required.

100. In this case, the question of whether the implied duty to determine whether there is a likely significant effect on the environment gives rise to a jurisdictional fact is in a sense academic, because on an objective view of the Activity, there is not a likely significant effect on the environment. The Activity is not one that is likely to significantly affect the environment in relation to flooding or stormwater.

101. Even if the Court were to consider that there was a likely significant affect in the relevant sense in some identified respect, the nature of the task required under s 5.7(1) of the EP&A Act suggests the question of whether an activity is likely to significantly affect the environment is not an objective jurisdictional fact but is a matter for the determining authority to determine acting reasonably, and otherwise according to law.

102. In Fullerton Cove, Pepper J considered at length whether the implied duty to determine whether there is a likely significant effect on the environment (in what is now s 5.7(1) of the EP&A Act) involved a question of jurisdictional fact. In summary, her Honour found that:

1. By 1999 the prevailing (although not universal) position was that the question was one for the determining authority and that the Court could not substitute its own opinion, except to determine that the decision was not reasonably open (and while expert evidence was admissible to demonstrate unreasonableness, otherwise only the material before the decision-maker was relevant);

2. In obiter in Timbarra Protection Coalition Inc v Ross Mining NL (1998) 98 LGERA 211 (Timbarra), Spigelman CJ likened the predecessor to s 5.7(1) to the former s 90(1)(c3) of the EP&A Act (a predecessor to s 4.15), which his Honour stated in obiter did not involve a jurisdictional fact (his Honour having drawn a distinction between questions addressed in the course of the inquiry, which were not jurisdictional, and an essential preliminary to decision-making, which were jurisdictional); and

3. In Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346, Biscoe J had considered that the predecessor to s 5.7(1) involved jurisdictional fact, applying Timbarra, but his Honour had failed to disclose any reasoning and her Honour considered it was open for her to determine the question for herself on the face of the reasoning Biscoe J had assumed Timbarra applied to the predecessor to s 5.7(1), when in fact it applied only to a species impact statement for the purpose of a Part 4 application;

4. The question does involve a jurisdictional fact for a number of reasons:

1. “most critically, s 112(1) operates as a preliminary limitation, or condition precedent, on the exercise of power (“shall not ... unless”). The “extrinsic or ancillary or preliminary nature of the fact” makes it more likely to be a jurisdictional fact (Timbarra at [44] and [50]-[60]; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 136 LGERA 288 at [46]-[49] and Barrick Australia Ltd v Williams (2009) 168 LGERA 43 at [26]);

2. the proposition now in s 5.7(1) is stated objectively “is likely to significantly affect” rather than as a matter of opinion “whether there is likely” – her Honour in this context appeared to assume that the absence of an EIS would invalidate “the approval given or the activity carried out”;

3. the question of likely significant affect sits among other criteria like “prescribed activity” that are objective facts;

4. the question of likely significant affect is not one of a number of other considerations – it is itself a question;

5. save for the determination of likely significant affect, the predecessor to s 5.7(1) does not itself involve a decision (during which likely significant affect is a consideration);

6. the central importance of an EIS is reflected throughout Part 5 of the EP&A Act makes it more likely that the legislature intended the assessment, culminating in the requirement to prepare an EIS, to be objectively ascertained; and

7. it is not always the case that matters of judgment involved in determining facts, including matters of fact and degree, mean that the fact is not jurisdictional. The exercise of judgment and the potential for inconvenience is no greater than that already present in any challenge to the reasonableness of a determining authority’s conclusion that an EIS is not required because the activity is not likely to significantly affect the environment. Remedies on judicial review are discretionary and may be refused.

105. The main error, with respect, disclosed in Pepper J’s reasoning is that it overlooks the fact that s 5.7(1) of the EP&A Act is a duty and is not a prerequisite to the source of the power to carry out the activity or to make the decision comprising the “approval” under Division 5.1. As discussed above, Division 5.1 does not itself confer a power and there is no such thing in administrative law as the “invalidation” of the carrying out of an activity (in much the same way as the Court of Appeal has said there is no such thing as an invalid development application). The power to carry out the activity, or to make a decision approving or permitting the activity, is not conferred by Div 5.1.

106. The question of likely significant effect in s 5.7(1) is simply not jurisdictional because there is no jurisdiction that it confers. Rather, it specifies the duty that must be carried out in the course of a determining authority exercising some other power, which jurisdiction has already been conferred on it by some other law. In this way it fails at the first hurdle to meet the description of a jurisdictional fact. To the extent that s 5.7(1) commands that a determining authority “shall not” carry out an activity or grant an approval to an activity of an identified kind until certain steps are taken, it potentially stops that act going ahead until those steps are taken, but it does not deprive the determining authority of the jurisdiction that has already been conferred on it by another Act.

107. In this sense, Spigelman CJ was not at all wrong in Timbarra (in the way Pepper J concluded his Honour was) to draw parallels between the predecessor to s 5.7(1) and “significant affect” considerations in a predecessor to what is now s 4.15 of the EP&A Act – just as with s 4.15, the determining authority under Division 5.1 already has jurisdiction to make a decision or carry out an activity (which power is already conferred elsewhere) and it is required to comply with the duty in s 5.7(1) in the course of exercising that jurisdiction and not as a prerequisite to being conferred with that jurisdiction.

108. The Court of Appeal, since each of Fullerton Cove and Palm Beach were decided, has also given a level of prominence to the question of whether the “fact” is evaluative, on which minds may reasonably differ, and the public inconvenience in having a Court adjudicate on the validity of Council’s process of evaluation. In this regard, “inconvenience” is not inconvenience to the Court or parties in the way Pepper J considered it but is the public inconvenience and uncertainty. While it may be unlikely that the legislature intended some matters in the same provision to be jurisdictional facts and not others, none of these cases say that this is necessarily determinative.

109. In this context, the question of significant affect in s 5.7(1) of the EP&A Act is not like that question in respect of a species impact statement which relates to confined effects on threatened species and the like – the likely significant affect question in s 5.7(1) is multi-faceted and can potentially relate to any aspect of the environment whatsoever. Further, the question of likely significant affect is considered in the course of the inquiry required under Div 5.1 (noting that the factors considered in s 5.5(1) are relevant to the question in s 5.7(1), and how the overall assessment progresses depend on the question in s 5.7(1)). The question of likely significant affect in s 5.7(1) is evaluative and open-ended that, without any clear indication to the contrary, it was not likely intended to be an objective question. This is put in stark relief in this case where a long list of significant effects are asserted, by contrast with Fullerton Cove or Palm Beach where the alleged significant effects were confined.

110. In the alternative, if the question is a jurisdictional fact, the Applicant has failed to adduce admissible evidence that would permit the Court to undertake for itself the relevant questions.

Findings

111. In judicial review proceedings the Court may determine for itself a jurisdictional fact after consideration of the admissible evidence adduced relating to such an assessment. In this case, the Council contends that the question of whether the Activity would or would be likely to cause a significant affect on the environment is not a jurisdictional fact as the consideration under s 5.7 of the EP&A Act is not a “jurisdictional fact” in the sense that s 5.7 confers a duty rather than creates the power to carry out the Activity and that the consideration of significant impact on the environment is so broad and far reaching that it was unlikely to be determined as an objective fact capable of being determined by the Court in judicial review proceedings. In making this submission the Council notes that such a finding is inconsistent with the earlier decisions of this Court including both that in Fullerton Cove and Palm Beach. It further accepts that the determination of whether such a question of whether it is a jurisdictional fact is academic in the present case, as the Court would not on the evidence be satisfied that there was a significant effect.

112. Generally, I am bound to follow a judge of this Court as a matter of judicial comity, unless I am satisfied that such a decision was clearly wrong. As was observed by Yeldham J in Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820 (citations omitted):

I do not think that I am relieved by the decision of Needham J. of my duty to bring my own judgment to bear on the point in question. There is no rule of law which binds a judge to abide by the decision of another judge of co-ordinate jurisdiction, but a judge of first instance will, as a matter of judicial comity, usually follow the decision of another judge of first instance in the same jurisdiction, unless convinced that the judgment was wrong…As I have said, I think I am bound, first, to consider the matter for myself in order to decide whether I ought to follow the decision of Needham J.

113. In this case, in order to find that the question is not a jurisdictional fact the Council suggest error in the earlier decisions of this Court in not recognising that the duty under s 5.7 of the EP&A Act is not itself a power and additionally that recent Court of Appeal authority have given a level of prominence to the consideration of whether the “fact” is evaluative on which minds may reasonably differ. In considering both the decision in Fullerton Cove and Palm Beach I am not satisfied that the determination that the question of jurisdictional fact is clearly wrong.

114. First, the Court in both instances considered the statutory regime to which s 5.7 of the EP&A Act related and the fact that the duty was imposed upon the consideration of whether to carry out the Activity, the power to permit such activity to be carried out was recognised as sourced by another Act. On their face, I do not consider that the decisions disclose such error.

115. Secondly, with respect to the change in prominence of the consideration of whether the fact is determinative, I observe that such is only one of the matters to be considered in the statutory construction in considering whether a matter is a jurisdictional fact. Neither decision on its face demonstrates an error such that this asserted change in emphasis would demonstrate that the decisions were clearly wrong.

116. Accordingly, I consider myself bound to consider that the question is one of jurisdictional fact.

117. This Ground as advanced by the Applicant is predicated entirely upon the Court being satisfied on the evidence that the system as designed would not operate in the manner intended. As observed above, in judicial review proceedings the Court is not inquiring for itself the merits of a particular proposal. In this case, the only circumstance in which such a finding could be made would be on the basis that the decision-making undertaken by the Council to determine that the Activity was not likely to have a significant effect on the environment was legally flawed. For the reasons outlined above, I have not found that the Council’s decision was so flawed. Accordingly, the essential premise that the OSD system would not operate as designed is not a finding that can be made absent undertaking a prohibited merit review.

118. Further, even if the Applicant had established that the Council’s determination of the significance of the impact was legally flawed the evidence adduced does not permit the Court to make the necessary finding of the consequences of the proposal operating in a manner other than that which it was designed.

119. The evidence of Dr Martens indicates that he was requested to provide a response to questions which questions included: Is the activity likely to significantly affect the environment? In responding to this request Dr Martens did in terms respond to this question at Table 1, Part 4.2 of his report wherein he stated with respect to Ground 6: Refer above to comments regarding Grounds 1-3. Such comments relating to Grounds 1-3 as identified in the Table did not address the question of whether there would be a significant effect on the environment.

120. In express response to the question posed Dr Martens report stated at par 45:

Question 3 - Is the activity likely to significantly affect the environment?

45.   I am of the view that the development is likely to significantly affect the environment because:

a.   There will be a considerable loss of flood plain storage and redirection of flood waters associated with the development. The proposed storage below the field will not adequately replace the surface flood storage system above the existing field. This loss of storage will increase overland flows to land adjacent to the field and within receiving waters. This may detrimentally impact existing terrestrial and riparian ecosystems and hydrology.

b.   The transport a range of pollutants from the field will likely degrade water quality within the receiving waters.

121. It is to be observed that the impacts identified by Dr Martens that relate to this opinion relate not to the Activity as proposed but to an assumption that the Activity and the stormwater system that formed part of that system did not perform in the manner in which it was designed. In addition, to the extent that he expresses an opinion on the question posed, he only asserts a possibility of impact or those assumptions (as indicated by his use of “may”) such is insufficient to permit a finding of a likely significant affect on the environment.

122. As to the Jacobs Report it performed two functions: first, an assessment of the current flooding and stormwater regime; and secondly, an assessment of a proposal that would divert water around the existing Oval by way of a stormwater detention tank of a different design and capacity to that proposed together with any overland flow not detained passing around the Oval and discharging unmitigated into Quarry Creek.

123. As to the BMT Report it assessed existing flood behaviour utilising and updating the Jacobs flood study. It thereafter considered the option of diversion of all flood water around the Oval. It then went on to consider mitigation measures including the creation of flood storage basins to ameliorate the consequential changes to flood behaviour and impact in the locality.

124. As was observed by Preston CJ of the LEC in Palm Beach at [261] it is well understood the concept of “likely” and “significant” effect means:

…

(g)   The word “likely” means only a “real chance or possibility” and not “more probably than not”: Jarasius v Forestry Commission (NSW) at 94; Drummoyne Municipal Council v Roads and Traffıc Authority (NSW) at 163; Bailey v Forestry Commission (NSW) at 211. (h) The word “significantly” means “important” or “more than ordinary” (Jarasius v Forestry Commission (NSW) at 93-94) and “a significant effect must be an important or notable effect on the environment, as compared with an effect which is something less than that, that is, non-significant or non-notable”: Drummoyne Municipal Council v Roads and Traffıc Authority (NSW) at 163; see also Bailey v Forestry Commission (NSW) at 211 where Hemmings J summarised the test to determine whether an activity is likely to “significantly” affect the environment as being “whether it is ‘important’, ‘notable’, ‘weighty’ or ‘more than ordinary’”

(h)   The word “significantly” means “important” or “more than ordinary” (Jarasius v Forestry Commission (NSW) at 93-94) and “a significant effect must be an important or notable effect on the environment, as compared with an effect which is something less than that, that is, non-significant or non-notable”: Drummoyne Municipal Council v Roads and Traffic Authority (NSW) at 163; see also Bailey v Forestry Commission (NSW) at 211 where Hemmings J summarised the test to determine whether an activity is likely to “significantly” affect the environment as being “whether it is ‘important’, ‘notable’, ‘weighty’ or ‘more than ordinary’”

…

125. In order to undertake the task of assessing whether the Activity was likely to cause a significant impact on the environment, the Court would need to have available evidence as to the effect that is contended for in order that it may determine whether the effect is likely and significant. In this case, the Applicant has not identified the contended effect, rather merely stated an opinion that there may be such an effect identified, upon further consideration (which consideration has not yet been undertaken). This is insufficient for present purposes.

126. Further, to the extent that the Applicant suggested that the Court could, by reference to earlier studies of different projects undertaken by either the Jacobs Report or the BMT Report determined the impact of the proposal is without merit. Each of these studies considered the impacts upon the environment of proposals that differed in material respects. To attempt to utilise these reports to assess whether the impact of the Activity was significant would require a use of those reports to undertake an assessment for a very different activity. Such an approach is not an assessment of the Activity proposed but the assessment of something else entirely and would fail to meet the obligations as required by s 5.5 of the EP&A Act: see Palm Beach at [271].

127. Even if the Court could seek to rely upon some aspect of the earlier studies to determine the impact of the Activity there is no evidence to enable such assessment to be adequately undertaken. The Applicant has adduced no evidence that would permit the determination that the impact of the Activity would be the same as the impacts identified in either the Jacobs Report or the BMT Report if the OSD system did not perform as designed. On the evidence available the Court is unable to make that assessment for itself, as it requires an assessment of changes to the hydraulic performance not yet modelled.

128. For all of those reasons, Ground 6 must fail.

Ground 6A – Delegations

129. During the course of the hearing the Applicant indicated an intention to seek leave to further amend the Amended Summons. By leave granted on 9 August 2023 the Applicant was granted leave to further amend the Amended Summons in accordance with the Further Amended Summons filed in Court on that day (Further Amended Summons).

130. By the Further Amended Summons the Applicant sought a declaration that:

…the officers acted without power in purporting to approve on 4 July 2023 the activity of constructing a synthetic playing field and stormwater mitigation works at Norman Griffiths Oval.

131. Section 49(5) of the Interpretation Act 1987 (NSW) (Interpretation Act) provides:

49   Delegation of Functions

…

(5)   A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate.

…

132. Accordingly, unless the Applicant proves that the signatories did not have the delegation he purported to exercise the Court is to take the exercise of the function as duly exercised.

133. The declaration relates to the officers that signed the REF, Mr Bounassif and Mr Watson who were identified with their signatures as “authorised person on behalf of the determining authority” and expressed in the certification of the REF (Folio 2) that:

The proposed activity may proceed subject to the mitigation measures outlined in Part F of this REF and the approval conditions outlined in Section F of this REF.

134. Section 377 of the LG Act confers upon the Council the power to delegate some of its functions to the General Manager of the Council and provides:

377   General power of the council to delegate

(1)   A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council under this or any other Act, other than the following—

…

135. There was no assertion that the General Manager or the Council did not have the relevant power to determine the Activity, or in particular undertake the discharge of the necessary duties conferred by ss 5.5 and 5.7 of the EP&A Act, rather the only issue was whether the power was, by its terms, included in the delegations to the relevant officer/s.

136. In this case, the General Manager made delegations to each of the signatories to the REF. The parties accepted that it was only necessary that only one of the signatories hold the necessary delegation. The delegation to Mr Bounassif was more extensive with respect to the issue for determination and therefore, I will consider the terms of his delegation. If Mr Bounassif did not hold the relevant delegation, it was agreed that Mr Watson would not hold the relevant delegation.

378   Delegations by the general manager

(1)   The general manager may delegate any of the functions of the general manager, other than this power of delegation.

(2)   The general manager may sub-delegate a function delegated to the general manager by the council to any person or body (including another employee of the council).

(3) Subsection (2) extends to a function sub-delegated to the general manager by the council under section 377(2).

137. The Applicant tendered the instrument of delegation to Mr Bounassif. That instrument stated:

Pursuant to section 377 and 378 of the Local Government Act 1993 and any other acts and every power thereunto enabling, to the direction and control of the General Manager, any resolution made from time to time by the Council in relation thereto, within approved budgets and Council’s policies, procedures and practices the delegate named herein, and every person from time to time holding the position in an acting capacity unless otherwise delegated, is hereby authorised, until such time as this delegation is revoked, to exercise the powers, authorities, duties and functions set out in this Schedule.

138. The instrument of delegation thereafter listed various powers duties and functions specifically delegated to Mr Bounassif. Of the powers delegated the Council contended that there was no specific delegation that permitted Mr Bounassif to sign the REF. The Council disputed this construction of the delegation. In construing the delegation, the Council principally relied upon the delegation identified by the code A0019 that appeared under the heading “Assets Delegation” and provided:

A0019   To act on Council's behalf to approve, approve subject to conditions, or refuse applications for use of public open space for activities which are consistent with the relevant Plans of Management and Council Policy.

Applicant’s submissions

139. The Applicant contended that the delegation in A0019 was to be construed as being limited solely to the regulatory functions of the Council as provided for in Chapter 7 of the LG Act as:

1. If the terms of the delegation were to be construed broadly so as to include any approval relating to the use of public open space there would by necessity need to be a separate delegation dealing with the Chapter 7 regulatory functions and there is not;

2. The use of the term “application” and “approve” must be read by reference to Chapter 7 regulatory functions alone as they are both terms used in that Chapter of the LG Act; and

3. The delegation being made pursuant to the provisions of the LG Act should be read as limited only to powers under that Act unless otherwise expressly provided in the text of the delegation. As a consequence, the relevant delegation could not be construed as providing for the exercise of any function under any other Act including the EP&A Act.

140. The Applicant accepted that an identical formulation of words was used in the delegation to Mr Bounassif reference Code A0012 at (6) and (7) which delegation provided:

A0012 Pursuant to Part 2 of Chapter 16 of the Local Government Act 1993 and Section 650 of the Local Government Act 1993 to:

(1) Act on behalf of Council in determining the nature and extent of appropriate activities in a public place and the placement of appropriate notices in accordance with Chapter 16 of the Local Government Act 1993.

(2) Act on behalf of Council in the removal of offenders in accordance with Section 681 of the Local Government Act 1993.

(3) Act on behalf of Council with respect to the confiscation of recreational equipment in accordance with Section 681A of the Local Government Act 1993.

(4) Act on behalf of Council as Manager of Crown Reserve Trusts where Council has been appointed by the Minister for Land and Water Conservation under the provisions of the Crown Lands Act 1989.

(5) Act on Council's behalf to regulate the use and management of Community Land in accordance with the provisions of Section 35 of the Local Government Act 1993.

(6)   Act on Councils behalf to approve, approve subject to conditions, or refuse applications for use of public open space for activities which are consistent with the relevant Plans of Management and Council Policy.

(7)   Act on Council's behalf to approve, subject to conditions, or refuse applications for use of public open space for activities which are consistent with the relevant Plans of Management and Council Policy.

141. The Applicant accepted that the words as used in A0012 should be read as not being limited only to the Chapter 7 regulatory functions, as to do so would render the delegation A0012 internally inconsistent when read together with the opening words of limitation in that delegation.

Council’s submissions

142. The Council contended that the proper construction of the delegated power in A0019 was not limited to the Chapter 7 regulatory functions or the LG Act more generally. The terms of the delegation were not limited in express terms nor would the context indicate such necessary limitation.

143. Contrary to the Applicant’s submission the concept of “approval” is not limited solely to Chapter 7 regulatory functions. In Chapter 6, which relates to the use and management of community land, concepts of approval are reflected in ss 24(3) and 36(3). Additionally, the term “use” is consistent with the language in s 35 of the LG Act in respect of community land the subject of a plan of management, while “activities” is consistent with the language in s 24 that includes the carrying out of activities.

144. As to the Applicant’s suggestion that “applications” are also only relevant to Chapter 7 this would not be accepted. The ordinary meaning of “applications” includes “the act of requesting” or “a written or spoken request or appeal” (Macquarie Dictionary Online meanings 7 and 8) – in the local government context there is nothing unusual about a Council notionally preparing a proposal for itself and determining whether to “approve” it. The objective purpose of the delegation is the approval of use of public open space for activities and in this context “applications” means no more than “proposals”.

145. Further, all the relevant delegations appear under the heading “Assets Delegations” rather than under “Approvals / Regulatory Delegations”. Chapter 7 is headed “What are the regulatory functions of councils?”, whereas Chapter 6 is concerned with community land (that is owned or managed by Council). The purpose of the regulation is broader than the regulatory function under Chapter 7 but is concerned with the broader use of community land (which may include approving specific activities under Chapter 7 but is not limited to approving such activities).

Findings

146. I find that the Applicant has not proven that Mr Bounassif did not relevantly duly exercise the delegation purported to have been given to him.

147. Contrary to the Applicant’s submission, there is no warrant in either the text or the context of the terms of the delegation to Mr Bounassif to limit is solely to the exercise of regulatory functions pursuant to Chapter 7 of the LG Act or the LG Act more generally for a number of reasons.

148. First, the terms of delegation A0019 are not in terms so limited. If it was intended that what on its face appears to be a broad and all-encompassing delegation should be something less then words of limitation would have been used, and they were not.

149. Secondly, the words used in A0019 are identical in terms to those used in A0012 at (6) and (7). It is a principle of construction that unless a contrary indication is found, words are taken to have been used consistently in an instrument. In light of the words of limitation used in the opening of A0012, the power delegated could not relevantly have been conferred in relation to Chapter 16 or the nominated section as each identified exercise of the power is not an exercise of the Chapter 7 power. If the words in A0019 were to be read in the manner contended for by the Applicant an inconsistency would be produced, requiring either the words in A0012 to be read with a different meaning or the function being delegated to have no purpose as the delegation relates to provisions other than those in Chapter 7.

150. Thirdly, there is no warrant to limit the delegation to the LG Act. As stated in the opening words of the delegation and as is expressed in functions delegated the Council intended, and had power, to delegate the nominated functions conferred upon it by the LG Act and other Acts.

151. Fourthly, the concept of “application” and “approval” are not limited to Chapter 7 of the LG Act for the reasons submitted by the Council above, which I accept.

152. Fifthly, the reference to “approve” is not a reference to the defined term “approval” in the LG Act which defines that term as:

Approval means an approval that is in force under this Act.

The delegation does not use this defined term but rather the term “approve”. Further, even if the term was defined by reference to the defined term the context of the delegation indicates a contrary intention as the delegation in terms is expressed as relating to legislative function additionally conferred under other Acts.

153. For all of those reasons, Ground 6A of the Further Amended Summons must fail.

Costs

154. To facilitate the expeditious provision of a judgment in this matter the parties agreed that costs should be reserved, and any argument be made after the parties have had the benefit of considering the terms of any judgment. Accordingly, I will reserve the question of costs and make directions for the making of any application for costs.

Conclusion and orders

155. For those reasons above, I find that the Applicant has failed to establish each of the Grounds in its Further Amended Summons. Accordingly, the Court orders:

1. The Further Amended Summons filed on 9 August 2023 is dismissed;

2. Costs are reserved;

3. The parties are to indicate to each other and the Court if an application for costs is to be made on or before 25 August 2023; and

4. If an application for costs is to be made the matter is listed for mention before me at 9am on 31 August 2023 to make directions for the hearing on costs and to fix a date for such hearing.

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Decision last updated: 11 August 2023