Patra Holdings Pty Ltd v Minister for Land and Water Conservation

[2001] NSWLEC 265

Land and Environment Court

of New South Wales

CITATION:	Patra Holdings Pty Ltd v Minister for Land and Water Conservation [2001] NSWLEC 265
PARTIES:	APPLICANT Patra Holdings Pty Ltd RESPONDENT Minister for Land and Water Conservation
FILE NUMBER(S):	10467 of 2001
CORAM:	Pearlman J
KEY ISSUES:	Question of Law :- preliminary question of law - clearing - consideration of ultimate use of land - economic viability - public interest
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Native Vegetation Conservation Act 1997 s 15, s 21 Port Stephens Local Environmental Plan 2000
CASES CITED:	Cartier Holdings Pty Ltd v Newcastle City Council and Anor [2001] NSWLEC 170; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262; Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; Kentucky Fried Chicken Pty Ltd v Gantidis and Anor (1979) 140 CLR 675; O'Sullivan v Farrer and Anor (1989) 168 CLR 210; Shoalhaven City Council v Lovell (1996) 136 FLR 58
DATES OF HEARING:	5/10/2001
DATE OF JUDGMENT:	11/28/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr M G Craig QC SOLICITORS Bilbie Dan RESPONDENT Mr J A Ayling SC SOLICITORS Department of Land and Water Conservation

JUDGMENT:

IN THE LAND AND 10467 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 28 November 2001

PATRA HOLDINGS PTY LTD

Applicant

v

MINISTER FOR LAND AND WATER CONSERVATION

Respondent

JUDGMENT

Introduction

1. By notice of motion, the applicant seeks the determination of the following preliminary question of law in this class 1 appeal:

Whether the consent authority may take into account the economic viability of the proposed use of the land after the clearing of native vegetation for which consent is sought has taken place, in determining the application for consent to carry out such clearing.

2. The proceedings involve an appeal from the respondent’s refusal to grant development consent for the clearing of native vegetation on 14 hectares of land. One of the issues raised by the respondent for determination in the class 1 appeal is numbered 9 and it is in relation to that issue that the preliminary question is raised. Issue 9 is in the following terms:

9. Doubt as to whether the economic viability of the proposed development has been established (see City West Housing Pty Ltd v Sydney CC (1999) 110 LGERA 262).

3. The parties filed an agreed statement of facts from which the following facts and circumstances are derived. The land the subject of the proceedings is lot 254 in DP 753204 at Port Stephens (“the site”) and it comprises an area of about 40 hectares. The applicant lodged with the respondent a development application seeking development consent under the Native Vegetation Conservation Act 1997 (“the NVC Act”) in respect of the proposed clearing of native vegetation on 14 hectares of the site. Following the clearing, the applicant intends to use this part of the site for the purposes of commercial olive growing and secondary processing. The development application was refused and the applicant has appealed to this Court.

4. The relevant statutory context is as follows:

(1) The site is zoned 1(a) Rural Agriculture under the Port Stephens Local Environmental Plan 2000 (“the LEP”);

(2) Under the LEP, development for the purpose of “agriculture” is permissible without consent. “Agriculture” is defined in the LEP so as to exclude “clearing”;

(3) Clearing of up to two hectares of the site is permissible with consent under the LEP and remains exempt from the operation of the NVC Act pursuant to cl 3(2) of sch 4 of the NVC Act;

(4) Since the site is neither land to which a regional vegetation management plan applies, nor is State protected land, clearing of native vegetation of more than two hectares per annum of the site is forbidden under s 21 of the NVC Act, unless development consent has been obtained;

(5) Section 15(1) of the NVC Act provides that, if development consent is required to clear land, that development consent may be obtained by the Minister making a determination in accordance with pt 4 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) to grant development consent;

(6) Section 15(2) of the NVC Act provides as follows:

15(2) For the avoidance of doubt, Part 4 of the EPA Act applies to and in respect of that development consent in the same way as it applies to and in respect of development consent that may be required by an environmental planning instrument.

Consideration

5. The applicant’s case is that the economic viability of the proposed use of the site for olive growing may not be taken into account in the determination of the development application for clearing. Indeed, the applicant’s case is that no economic consideration relating to olive growing is relevant. Mr Craig QC, appearing for the applicant, conceded that the respondent was entitled to ask the applicant to specify the use to which the site is to be put after clearing, but, having been informed that the ultimate use is to be that of olive growing, being a use permissible without consent, no further inquiry about the ultimate use and its impacts is relevant. However, I do not accept that submission for the following reasons.

6. There is no dispute between the parties that the assessment and determination of a development application made pursuant to s 15 of the NVC Act is prescribed by the relevant provisions of the EP&A Act. Apart from so providing in s 15, the NVC Act contains no specific provisions regarding the assessment and determination of such development applications. One must therefore have regard to the relevant provisions of the EP&A Act.

7. Section 79C of the EP&A Act provides that a consent authority, in determining a development application, is required to take into consideration such of a number of specified matters as are of relevance to the development the subject of the development application. One of those matters is “the public interest” (s 79C(1)(e)).

8. In determining a development application for the clearing of native vegetation, the public interest is a crucial factor to take into account. That is because clearing results in the permanent loss of native vegetation, which can include indigenous trees, understorey plants, groundcover and wetland plants (s 6(1) NVC Act). Whether or not that is a desirable consequence from an environmental and planning point of view depends on many factors, of which the public interest is a significant one.

9. The concept of “public interest” is wide, and it is legitimate, in considering the public interest, to consider the ultimate use to which the site is to be put. Authority for that proposition is to be found in Shoalhaven City Council v Lovell (1996) 136 FLR 58. In that case, the development for which consent was sought was a subdivision in respect of land adjacent to an air base. It was held that it was relevant for the consent authority to take into account the effect of the air base on those who would be living upon the land when subdivided, and it would also be relevant for the consent authority to take into account the effect on the safety and operation of the air base of the fact that persons would live on the land when subdivided.

10. At p 63, Mahoney P said, by reference to the discretion to grant or refuse consent and the relevant considerations under s 90(1) of the EP&A Act, being the section which preceded s 79C(1):

However, by s 90(1)(q) and (r) the Land and Environment Court is to take into account, in exercising such a discretion … ‘the public interest’. The ambit of these terms is wide…

In considering the relevance of considerations of this kind, two questions may arise: whether the considerations can, in a proper factual context, be relevant to the exercise of the discretion or whether they cannot in any circumstances be so relevant; and, if they can be relevant, whether in the circumstances of the instant case, they are relevant.

It is arguable that safety and similar considerations were not in fact relevant in this case because the consent sought was a consent merely to the subdivision of the land and that matters affecting the safety of the aircraft, for example, the height of structures or the interference with communications, could and should be controlled when the occasion arose to approve the erection of buildings or structures or the use of the subdivided land generally. I do not think that that is a correct approach. The erection of building structures and the use of electronic equipment and the like is something which is apt to occur if the land is subdivided for residential and similar use. Such things are or may be incidents of that use. It is relevant to consider the possible effect of them at the earlier rather than the later stage.

11. Although the term “public interest” is not defined in either the EP&A Act or the NVC Act, it must be applied, in the determination of an application for the clearing of native vegetation, having regard to the scope and purpose of those statutes (see O’Sullivan v Farrer and Anor (1989) 168 CLR 210 at 216). Thus, relevantly, the NVC Act is concerned with the conservation and management of native vegetation, and, included amongst its objects as specified in s 3, is the following object:

(b) to encourage and promote native vegetation management in the social, economic and environmental interests of the State …

12. Similarly and relevantly, s 5(a)(ii) of the EP&A Act specifies, as an object of that statute, the encouragement of “the promotion and co-ordination of the orderly and economic use and development of land …”.

13. Accordingly, the exercise of the discretion of the consent authority (or the Court on appeal) as to whether to grant or refuse consent to the clearing of native vegetation involves, amongst other things, the balancing of the public detriment of the permanent loss of native vegetation against the public interest in the furtherance of the objects of both the EP&A Act and the NVC Act, including consideration of the promotion of native vegetation management in the economic interests of the State and the orderly and economic use and development of land. In that context and to the limited extent encompassed by those statutory objects, economic considerations (to use a neutral term) as a component of the public interest may be relevant to the exercise of the discretion.

14. In coming to that conclusion, two things must be said. First, I reject the notion that the economic impact in the locality of the ultimate use of the site for olive growing may be a relevant consideration. That is the matter specified in s 79C(1)(b), and it is the matter which was the subject of consideration by the Court in City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 and other cases, such as Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 and Cartier Holdings Pty Ltd v Newcastle City Council and Anor [2001] NSWLEC 170. It is a matter which in this case is more specifically directed to the impact of the ultimate use; but the ultimate use is not the subject of the development application, nor need it be the subject of any development application, since it is permissible as agriculture without the necessity for development consent. Therefore, so far as issue 9 refers to City West Housing v Sydney City Council, it is irrelevant.

15. The second thing concerns the expression “economic viability of the proposed development” as that appears in issue 9. As I have explained, the “economic viability” of the use of the site for olive growing can only be relevant as a component of the public interest, in the sense of the economic interests of the State and the orderly and economic use of land. Thus, the “economic viability” of olive growing upon the site may be relevant in a general sense, but “economic viability”, in the sense of the profitability of the applicant’s personal business of growing olives, cannot be relevant (see Kentucky Fried Chicken Pty Ltd v Gantidisand Anor (1979) 140 CLR 675 at 687).

16. For these reasons, I would answer the preliminary question of law by saying that the consent authority (or the Court on appeal) may take into account the economic viability of the proposed use of the site after the clearing of the native vegetation in determining the development application, as a matter of the public interest in the sense which I have outlined. I have not overlooked that it is not simply issue 9 which raises that matter – issues 8 and 10 also raise it. They are as follows:

8. Doubt as to the socio-economic benefit likely to result to the community from the carrying out of the proposed development.

10. The extent of the imbalance between the relative environmental values of the area under application and the relative socio-economic benefits of the proposed development (if any such benefits are likely to occur).

17. However, whether economic viability of the proposed use of the site after clearing (in the sense in which I have outlined) is a relevant consideration at all depends the evidence adduced at the hearing of the class 1 appeal. The Court cannot determine the relevance of particular issues in a vacuum in advance of the hearing. What is required is for the Court to determine if the issue is, in a proper factual context, relevant to the exercise of discretion as to whether to grant or refuse consent; and if the issue can be relevant, whether, in the circumstances of the case, it is relevant (Shoalhaven City Council v Lovell per Mahoney P at p 63). Given my finding as to the potential relevance of this issue, it is not appropriate to strike out issue 9 at this stage.

Conclusion

18. For the foregoing reasons, I answer the preliminary question of law as follows:

Question

Whether the consent authority may take into account the economic viability of the proposed use of the land after the clearing of native vegetation for which consent is sought has taken place, in determining the application for consent to carry out such clearing.

Answer

Yes, in the consideration of the public interest, having regard to the relevant objects of the Native Vegetation Conservation Act 1997 and the Environmental Planning and Assessment Act 1979.

19. The class 1 appeal should proceed to a hearing upon the basis of the answer I have provided. I note that the proceedings are listed for hearing of a notice of motion on 4 December 2001. On that date, directions for the further disposition of the proceedings can also be made.

20. I reserve the question of costs.

21. The exhibit may be returned.