Reysson Pty Ltd v Minister Administering the Environment Planning and Assessment Act 1979

[2019] NSWLEC 203

Land and Environment Court

New South Wales

Medium Neutral Citation:

Reysson Pty Ltd v Minister Administering the Environment Planning and Assessment Act 1979 [2019] NSWLEC 203

Date of orders:

23 December 2019

Decision date:

23 December 2019

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See [193] of judgment

Catchwords:

JUDICIAL REVIEW – identification of “coastal wetlands and littoral rainforests area” in s 6 of the Coastal Management Act 2016 being land identified by State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP)) of “being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests” not a jurisdictional fact

 

JUDICIAL REVIEW – identification of 100-metre proximity area around coastal wetlands not a disproportionate regulatory approach

  JUDICIAL REVIEW – CM SEPP not invalid because Governor did not approve “Coastal Wetlands and Littoral Rainforests Area Map” at time of making CM SEPP

Legislation Cited:

Biodiversity Conservation Act 2016
Building Units and Group Titles Act 1980 (Qld)
Coastal Management Act 2016 ss 3, 5, 6, 7, 8, 9, 10, 26, 27
Development Act 1993 (SA) s 35
Environmental Planning and Assessment Act 1979 ss 3.13, 3.14, 3.20, 3.27, 3.29, 3.30, former ss 28, 93F, former Pt 3A
Environmental Planning and Assessment Regulation 2000 cl 38
Fisheries Management Act 1994 s 198A
Interpretation Act 1987 ss 14, 45B
Land Management (Native Vegetation) Code 2017 Sch 5
Land Management (Native Vegetation) Code 2018 Sch 5
Local Government (General) Regulation 2005 cl 108
Local Government Act 1993 s 36
Local Land Services Act 2013 ss 60D, 60E, 60I, 60N
Local Land Services Regulation 2014 cl 108
Marine Estate Management Act 1984 s 4
National Security (Prices) Regulations (Cth) reg 23
Native Vegetation Act 2003 s 4
Protection of the Environment Operations Act 1997 ss 50, 58, Sch 1
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy (Coastal Management) 2018 cll 3, 4, 5, 6, 8, 10, 11
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors Housing SEPP) Sch 1
State Environmental Planning Policy (Major Projects) 2005
State Environmental Planning Policy No 14—Coastal Wetlands
State Environmental Planning Policy No 26—Littoral Rainforests
State Environmental Planning Policy No 71—Coastal Protection
Sugar Acquisition Act 1915 (Qld)
Water Management Act 2000 Dictionary

Cases Cited:

4nature Inc v Centennial Springvale Pty Ltd (2017) 224 LGERA 301; [2017] NSWCA 191
AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248
Arnold v Hunt (1943) 67 CLR 429
Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3
Australian Communist Party v Commonwealth (1951) 83 CLR
Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; [2012] FCAFC 65
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10
Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275
Commissioner of Taxation v ICI Australia Ltd (1971) 127 CLR 529
Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11
Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd (2005) 21 BCL 364; [2005] NSWCA 229
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5
Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27
Dainford Ltd v Smith (1985) 155 CLR 342; [1985] HCA 23
FAI Insurances Ltd v Winneke (1982) 151 CLR 342; [1982] HCA 26
Foxtel Management Pty Ltd v Australasian Competition and Consumer Commission (2000) 173 ALR 362; [2000] FCA 589
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147
Hunter’s Hill Council v Minister for Local Government (2017) 224 LGERA 1; [2017] NSWCA 188
Huntlee Pty Ltd v Sweetwater Action Group Inc (2011) 185 LGERA 429; [2011] NSWCA 378
Melino v Roads and Maritime Services (2017) 226 LGERA 337; [2017] NSWLEC 118
Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565
Municipal Officers Association of Australia v Lancaster (1981) 37 ALR 559
Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (2019) 372 ALR 695; [2019] NSWCA 216
Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340; [2006] NSWCA 122
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54; [1950] HCA 40
Racecourse Co-operative Sugar Association Ltd v Attorney-General for the State of Queensland (1979) 142 CLR 460; [1979] HCA 50
Re Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178; [1985] HCA 55
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
Shellharbour City Council v Minister for Planning (2012) 187 LGERA 427; [2012] NSWLEC 29
State of South Australia v Tanner (1989) 166 CLR 161; [1989] HCA 3
Tickner v Bropho (1993) 40 FCR 183
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189
Wacando v Commonwealth (1981) 148 CLR 1; [1981] HCA 60
Warringah Shire Council v Punnett & Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Wright v TIL Services Pty Ltd (1956) SR (NSW) 413

Texts Cited:

Anne Twomey, The Constitution of New South Wales (The Federation Press, 2004)
George Williams, Sean Brennan and Andrew Lynch, Blackshield and Williams: Australian Constitutional Law and Theory (The Federation Press, 2018, 7th ed)
Macquarie Dictionary (online)
Oxford English Dictionary (online)
Rodney Brazier, Constitutional and Administrative Law (Penguin Books, 1989)

Category:

Principal judgment

Parties:

Reysson Pty Ltd (Applicant)
Minister Administering the Environment Planning and Assessment Act 1979 (First Respondent)
State of New South Wales (Second Respondent)

Representation:

COUNSEL:
T Robertson SC and C Norton (Applicant)
S J Free SC and M O’ Brien (First Respondent)
Submitting appearance (Second Respondent)

  SOLICITORS:
Woolf Associates (Applicant)
Department of Planning and Environment (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

18/193677

Judgment

1. The Applicant Reysson Pty Ltd (Reysson) owns land on the NSW coast in Tweed Heads South. That land is included in the “Coastal Wetlands and Littoral Rainforests Area Map” (Area Map) under the State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP). Reysson has commenced judicial review proceedings challenging the decision of the Governor to make the CM SEPP on several grounds. A declaration of invalidity of the whole CM SEPP or alternatively the offending part of the Area Map is sought. The State of New South Wales was also joined as a party and filed a submitting appearance.

2. Reysson owns Lot 2 in DP 1060215 and Lot 4 in DP 228424 (collectively, the Reysson land) (see map at [24] below). Lot 2 is situated above Lot 4. Since the 1970s, extensive earthworks have been carried out at the Reysson land involving the digging of stormwater channels on behalf of the Tweed Shire Council to provide stormwater drainage from remote subdivision sites through the Reysson land out to the Tweed River and the construction of associated works such as levee banks and floodgates. Stormwater runoff is directed onto the Reysson land from the nearby golf course to the north. A narrow area of Crown land divides Lot 2 in the western part of Lot 2. Part of Lot 4 is used as a banana plantation.

3. The Minister for Planning (Minister) recommended the making of the CM SEPP to the Governor on 7 March 2018. The Governor made the CM SEPP on 23 March 2018 and it commenced on 3 April 2018.

4. The amended summons filed 14 August 2019 provides:

ORDERS SOUGHT

1 A declaration that State Environmental Planning Policy (Coastal Management) 2018 is invalid.

2 In the alternative to order 1, a declaration that StateEnvironmental Planning Policy (Coastal Management) 2018 is invalid to the extent that it applies to land described as Lot 2 in DP 1060215 and Lot 4 in DP 228424 located at Tweed Heads South.

3.   Further or in the alternative to orders 1 and 2 above, a declaration that StateEnvironmental Planning Policy (Coastal Management) 2018 does not validly identify the Coastal Wetlands and Littoral Rainforests Area for the purpose of the Coastal Management Act 2016.

4.   An order that the respondents pay the applicant's costs of the proceedings.

5.   Such further or other orders as the Court thinks fit.

DETAILS OF DECISION

1   The decision makers were:

a)   the Governor of the State of New South Wales; and

b)   the Minister for Planning

2   The decisions to be reviewed are:

a)   the decision of the Governor of the State of New South Wales to make State Environmental Planning Policy (Coastal Management) 2018 (“the Coastal SEPP”); and

...

3   The Applicant seeks relief from:

a)   the whole of decision 2(a); or,

b) alternatively, from the part of decision 2(a) applying the Coastal SEPP to land described as Lot 2 in DP 1060215 and Lot 4 in DP 228424 located at Tweed Heads South.

GROUNDS

1   The decision to make State Environmental Planning Policy (Coastal Management) 2018 (“the Coastal SEPP”) was beyond the power conferred by section 3.29 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) and sections 5 and 6(1) of the Coastal Management Act 2016 (“CM Act”) as the Coastal SEPP purports to identify land within the coastal wetlands and littoral rainforests area for the purposes of the CM Act and the Coastal SEPP which is neither:

a)   land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests, or

b)   land adjoining those features.

Particulars

1.1   The Coastal SEPP identifies:

a)   land described as Lot 2 in DP 1060215 and Lot 4 in DP 228424 (collectively, the Reysson Land); and

b)   land in the vicinity of the Reysson Land;

(collectively, the Tweed Heads South Land) as being with in the coastal wetlands and littoral rainforest area for the purposes of the CM Act and the Coastal SEPP.

1.2   The Tweed Heads South Land (including the Reysson Land) is not:

a)   land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests, or

b)   land adjoining those features.

1.3   Further or in the alternative to Particular 1.2, the Tweed Heads South Land (including the Reysson Land) is not:

a)   land which naturally displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests, or

b)   land adjoining those features.

2 In the alternative to Ground 1, the decision to apply the Coastal SEPP to the Reysson Land was beyond the power conferred by section 3.29 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) and sections 5 and 6(1) of the Coastal Management Act 2016 (“CM Act”) as the Coastal SEPP purports to identify the Reysson Land within the coastal wetlands and littoral rainforests area for the purposes of the SEPP and the CM Act when the Reysson Land is neither:

a)   land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests, or

b)   land adjoining those features.

Particulars

2.1 The Coastal SEPP identifies the Reysson Land as being with in the coastal wetlands and littoral rainforest area for the purposes of the CM Act and the Coastal SEPP.

2.2   The Reysson Land is not:

a)   land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests, or

b)   land adjoining those features.

2.3   Further or in the alternative to Particular 2.2, the Reysson Land is not:

a)   land which naturally displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests, or

b)   land adjoining those features.

3. Further or in the alternative to Grounds 1 and 2, the identification of the Reysson Land as being within the coastal wetlands and littoral rainforest area for the purposes of the CM Act and the Coastal SEPP is not reasonably and appropriately adapted to achieving:

a) the objects of the CM Act; and

b) the aims of the Coastal SEPP.

Particulars

3.1   The Reysson Land is not

a)   land which naturally displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests, or

b)   land adjoining those features.

3.2 The designation of the Reysson Land as being within the coastal wetlands and littoral rainforest area for the purposes of the CM Act and Coastal SEPP is so distant from any land which naturally displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests that its designation as being within the coastal wetlands and littoral rainforest area for the purposes of the CM Act and Coastal SEPP serves no purpose in connection with:

a) the objects of the CM Act; and

b) the aims of the Coastal SEPP.

[4.   Not pressed.]

5. Further or in the alternative to Grounds 1-3, the decision in making the Coastal SEPP to identify the coastal wetlands and littoral rainforests area, for the purposes of the CM Act, as the land identified as such by the Coastal Wetlands and Littoral Rainforests Area Map (“CWLR Map”) in cl 6(2) of the Coastal SEPP is invalid as:

a) the Coastal SEPP purports to identify that area by reference to a specified map, being the CWLR Map; and

b) the CWLR Map was not made or approved of by the Governor; and

c) the CWLR Map was not before the Governor at the time the Governor determined to make the Coastal SEPP.

Environmental Planning and Assessment Act 1979

5. Relevant sections of the Environmental Planning and Assessment Act 1979 (EPA Act) concerning the making of an environmental planning instrument (EPI) provide:

Part 3 Planning instruments

…

Division 3.2 Environmental planning instruments—general

3.13 Making of environmental planning instruments

(1)   Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act.

(2)   Environmental planning instruments may be made:

(a)   under Division 3.3 (called a State environmental planning policy or SEPP), or

…

Division 3.3 Environmental planning instruments—SEPPs

3.29 Governor may make environmental planning instruments (SEPPs)

(1)   The Governor may make environmental planning instruments for the purpose of environmental planning by the State. Any such instrument may be called a State environmental planning policy (or SEPP).

(2)   Without limiting subsection (1), an environmental planning instrument may be made by the Governor to make provision with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance or of environmental planning significance to a district within the meaning of Division 3.1.

3.30 Consultation requirements

(1)   Before recommending the making of an environmental planning instrument by the Governor, the Minister is to take such steps, if any, as the Minister considers appropriate or necessary—

(a)   to publicise an explanation of the intended effect of the proposed instrument, and

(b)   to seek and consider submissions from the public on the matter.

(2)   Before recommending the making of an environmental planning instrument by the Governor, the Minister must consult with the Greater Sydney Commission if—

(a)   the proposed instrument relates to land within the Greater Sydney Region, and

(b)   the Minister is of the opinion that the proposed instrument is likely to significantly affect the implementation of a strategic plan affecting that Region.

Interpretation Act 1987

6. Section 14 of the Interpretation Act 1987 provides:

Part 2 Words and expressions

…

14 Governor

In any Act or instrument, a reference to the Governor is a reference to the Governor with the advice of the Executive Council, and includes a reference to any person for the time being lawfully administering the Government.

…

Coastal Management Act 2016

7. The Coastal Management Act 2016 (CM Act) and CM SEPP came into force on 3 April 2018 and replaced the former statutory scheme comprising the Coastal Protection Act 1979, State Environmental Planning Policy No 14—Coastal Wetlands (SEPP 14), State Environmental Planning Policy No 26—Littoral Rainforests (SEPP 26) and State Environmental Planning Policy No 71—Coastal Protection.

8. Relevant sections of the CM Act provide:

Part 1 Preliminary

…

3 Objects of this Act

The objects of this Act are to manage the coastal environment of New South Wales in a manner consistent with the principles of ecologically sustainable development for the social, cultural and economic well-being of the people of the State, and in particular:

(a)   to protect and enhance natural coastal processes and coastal environmental values including natural character, scenic value, biological diversity and ecosystem integrity and resilience, and

(b)   to support the social and cultural values of the coastal zone and maintain public access, amenity, use and safety, and

(c)   to acknowledge Aboriginal peoples’ spiritual, social, customary and economic use of the coastal zone, and

(d)   to recognise the coastal zone as a vital economic zone and to support sustainable coastal economies, and

(e)   to facilitate ecologically sustainable development in the coastal zone and promote sustainable land use planning decision-making, and

(f)   to mitigate current and future risks from coastal hazards, taking into account the effects of climate change, and

(g)   to recognise that the local and regional scale effects of coastal processes, and the inherently ambulatory and dynamic nature of the shoreline, may result in the loss of coastal land to the sea (including estuaries and other arms of the sea), and to manage coastal use and development accordingly, and

…

Part 2 Coastal zone and management objectives for coastal management areas

5 Coastal zone

In this Act, the coastal zone means the area of land comprised of the following coastal management areas:

(a)   the coastal wetlands and littoral rainforests area,

(b)   the coastal vulnerability area,

(c)   the coastal environment area,

(d)   the coastal use area.

6 Coastal wetlands and littoral rainforests area

(1)   The coastal wetlands and littoral rainforests area means the land identified by a State environmental planning policy to be the coastal wetlands and littoral rainforests area for the purposes of this Act, being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features.

(2)   The management objectives for the coastal wetlands and littoral rainforests area are as follows:

(a)   to protect coastal wetlands and littoral rainforests in their natural state, including their biological diversity and ecosystem integrity,

(b)   to promote the rehabilitation and restoration of degraded coastal wetlands and littoral rainforests,

(c)   to improve the resilience of coastal wetlands and littoral rainforests to the impacts of climate change, including opportunities for migration,

(d)   to support the social and cultural values of coastal wetlands and littoral rainforests,

(e)   to promote the objectives of State policies and programs for wetlands or littoral rainforest management.

7 Coastal vulnerability area

(1)   The coastal vulnerability area means the land identified by a State environmental planning policy to be the coastal vulnerability area for the purposes of this Act, being land subject to coastal hazards.

…

8 Coastal environment area

(1)   The coastal environment area means the land identified by a State environmental planning policy to be the coastal environment area for the purposes of this Act, being land containing coastal features such as the coastal waters of the State, estuaries, coastal lakes, coastal lagoons and land adjoining those features, including headlands and rock platforms.

…

9 Coastal use area

(1)   The coastal use area means the land identified by a State environmental planning policy to be the coastal use area for the purposes of this Act, being land adjacent to coastal waters, estuaries, coastal lakes and lagoons where development is or may be carried out (at present or in the future).

…

10 Matters relating to identification of coastal management areas

(1)   LEPs may amend SEPPs to identify coastal management areas. For the avoidance of doubt, a local environmental plan under the Environmental Planning and Assessment Act 1979 may amend a State environmental planning policy under that Act to identify a coastal management area (or part of such an area) for the purposes of this Act.

(2)   Recommendation of Minister required. A provision of an environmental planning instrument under the Environmental Planning and Assessment Act 1979 that identifies a coastal management area (or part of such an area) for the purposes of this Act must not be made without the recommendation of the Minister administering this Act.

(3)   Hierarchy of management objectives if overlapping. A single parcel of land may be identified by a State environmental planning policy as being within different coastal management areas. However, in such a case, if the management objectives of the areas are inconsistent, the management objectives of the highest of the following coastal management areas (set out highest to lowest) prevail to the extent of the inconsistency:

(a)   the coastal wetlands and littoral rainforests area,

(b)   the coastal vulnerability area,

(c)   the coastal environment area,

(d)   the coastal use area.

…

State Environmental Planning Policy (Coastal Management) 2018

9. Relevant clauses of the CM SEPP provide:

Part 1 Preliminary

…

3 Aim of Policy

The aim of this Policy is to promote an integrated and co-ordinated approach to land use planning in the coastal zone in a manner consistent with the objects of the Coastal Management Act 2016, including the management objectives for each coastal management area, by:

(a)   managing development in the coastal zone and protecting the environmental assets of the coast, and

(b)   establishing a framework for land use planning to guide decision-making in the coastal zone, and

(c)   mapping the 4 coastal management areas that comprise the NSW coastal zone for the purpose of the definitions in the Coastal Management Act 2016.

4 Interpretation

(1)   In this Policy:

…

Coastal Wetlands and Littoral Rainforests Area Map means the State Environmental Planning Policy (Coastal Management) 2018 Coastal Wetlands and Littoral Rainforests Area Map.

…

5 Land to which Policy applies

This Policy applies to land within the coastal zone.

6 Identification of coastal management areas

(1)   This clause identifies land for the purposes of the Coastal Management Act 2016 and this Policy.

(2)   The coastal wetlands and littoral rainforests area is the land identified as such by the Coastal Wetlands and Littoral Rainforests Area Map.

(3)   The coastal vulnerability area is the land identified as such by the Coastal Vulnerability Area Map.

(4)   The coastal environment area is the land identified as such by the Coastal Environment Area Map.

(5)   The coastal use area is the land identified as such by the Coastal Use Area Map.

…

8 Maps

(1)   A reference in this Policy to a named map adopted by this Policy is a reference to a map by that name:

(a)   approved by the Minister when the map is adopted, and

(b)   as amended or replaced from time to time by maps declared by environmental planning instruments to amend or replace that map, and approved by the Minister when the instruments are made.

(2)   Any 2 or more named maps may be combined into a single map. In that case, a reference in this Policy to any such named map is a reference to the relevant part or aspect of the single map.

(3)   Any such maps are to be kept and made available for public access in accordance with arrangements approved by the Minister.

(4)   For the purposes of this Policy, a map may be in, and may be kept and made available in, electronic or paper form, or both.

Note. The maps adopted by this Policy are to be made available on the NSW Planning Portal.

…

Part 2 Development controls for coastal management areas

Division 1 Coastal wetlands and littoral rainforests area

10 Development on certain land within coastal wetlands and littoral rainforests area

(1)   The following may be carried out on land identified as “coastal wetlands” or “littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map only with development consent:

(a) the clearing of native vegetation within the meaning of Part 5A of the Local Land Services Act 2013,

(b) the harm of marine vegetation within the meaning of Division 4 of Part 7 of the Fisheries Management Act 1994,

(c)   the carrying out of any of the following:

(i)   earthworks (including the depositing of material on land),

(ii)   constructing a levee,

(iii)   draining the land,

(iv)   environmental protection works,

(d)   any other development.

(2)   Development for which consent is required by subclause (1), other than development for the purpose of environmental protection works, is declared to be designated development for the purposes of the Act.

(3)   Despite subclause (1), development for the purpose of environmental protection works on land identified as “coastal wetlands” or “littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map may be carried out by or on behalf of a public authority without development consent if the development is identified in:

(a)   the relevant certified coastal management program, or

(b) a plan of management prepared and adopted under Division 2 of Part 2 of Chapter 6 of the Local Government Act 1993, or

(c) a plan of management approved and in force under Division 6 of Part 5 of the Crown Lands Act 1989.

(4)   A consent authority must not grant consent for development referred to in subclause (1) unless the consent authority is satisfied that sufficient measures have been, or will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland or littoral rainforest.

…

11 Development on land in proximity to coastal wetlands or littoral rainforest

(1)   Development consent must not be granted to development on land identified as “proximity area for coastal wetlands” or “proximity area for littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map unless the consent authority is satisfied that the proposed development will not significantly impact on:

(a)   the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or

(b)   the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.

(2)   This clause does not apply to land that is identified as “coastal wetlands” or “littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map.

Local Land Services Act 2013

10. Reysson also referred to the Local Land Services Act 2013 (LLS Act) provides:

Part 5A Land management (native vegetation)

Division 1 Preliminary

…

60D Other definitions

In this Part—

…

regulated rural area means any area of the State to which this Part applies that is category 2-regulated land.

Division 2 Native vegetation regulatory map

60E Purpose of native vegetation regulatory map

The purpose of the native vegetation regulatory map is to designate areas of the State to which this Part applies—

…

(b)   where the clearing of native vegetation is regulated under this Part (category 2-regulated land), and

…

60I Category 2-regulated land mapping

…

(2)   Land is to be designated as category 2-regulated land if the Environment Agency Head reasonably believes that—

…

(i)   the land is in the coastal wetlands and littoral rainforests area of the coastal zone referred to in the Coastal Management Act 2016, or

…

60N Unauthorised clearing of native vegetation in regulated rural areas—offence

(1)   A person who clears native vegetation in a regulated rural area is guilty of an offence unless the person establishes any of the following defences—

(a) that the clearing is for an allowable activity authorised under Division 4 and Schedule 5A,

(b)   that the clearing is authorised by a land management (native vegetation) code under Division 5,

(c) that the clearing is authorised by an approval of the Panel under Division 6,

(d)   that the clearing is authorised under section 60O (Clearing authorised under other legislation etc),

(e)   that the clearing is the carrying out of a forestry operation authorised under Part 5B (Private native forestry).

Evidence

11. Reysson tendered the following exhibits:

1. Exhibit A – evidence book containing reports attached to affidavits of the following experts:

1. Dr Clements ecologist (22 October 2018 and 18 June 2019);

2. Mr Parker ecologist (1 February 2019);

3. Joint ecology expert report by Dr Clements and Mr Parker (24 July 2019);

4. Dr Martens hydrologist (24 October 2018 and 19 June 2019);

5. Dr Hazelton soil scientist (30 October 2018 and 24 June 2019);

6. Mr Sutherland agricultural and environmental scientist (1 February 2019); and

7. Joint expert report (hydrology and floristic characteristics, and soil) by Dr Martens, Mr Sutherland and Dr Hazelton (24 July 2019).

2. Exhibit B – itinerary and maps related to the site visit dated 30 July 2019.

3. Exhibit C – court book.

4. Exhibit D – Reysson’s additional bundle of documents as referred to by experts included:

1. NSW Office of Environment and Heritage (OEH), “What is a Wetland?”  accessed 26 July 2019;

2. US National Research Council, Wetlands: Characteristics and Boundaries (US National Research Council, 1995);

3. Maryland Department of Environment, “Definition of Wetlands”;

4. Australian Government Land & Water Australia (Derek Eamus), Identifying Groundwater Dependent Ecosystems: A Guide for Land and Water Managers (June 2009);

5. NSW Department of Primary Industries (Water), Methods for the Identification of High Probability Groundwater Dependent Vegetation Ecosystems (September 2016);

6. Robert H Kadlec, Treatment Wetlands (2nd ed, 2009, CRC Press);

7. Andrew Goudie, The Encyclopaedic Dictionary of Physical Geography (2nd ed, Basil Blackwell, 1994);

8. NSW Department of Primary Industries, Risk Assessment Guidelines for Groundwater Dependent Ecosystems, Volume 1 Conceptual Framework (May 2012); and

9. NSW Department of Primary Industries, Risk Assessment Guidelines for Groundwater Dependent Ecosystems, Volume 3 Identification (June 2012).

5. Exhibit E – Department of Water and Sanitation (Republic of South Africa), “Capillary Fringe” (Groundwater Dictionary) accessed 31 July 2019.

6. Exhibit F – NSW OEH, “Plant Community Types: Frequently Asked Questions” accessed 31 July 2019.

7. Exhibit G – S J Griffith, C Bale and P Adam, “Environmental Correlates of Coastal Heathland and Allied Vegetation” (2008) 56 Australian Journal of Botany 512.

12. The Minister tendered the following exhibits:

1. Exhibit 1 – Wetlands Research Program, Installing Monitoring Wells/Piezometers in Wetlands (Technical Note HY-IA-3.1, August 1993).

2. Exhibit 2 – extract from US Department of Interior, Bureau of Reclamation, Ground Water Manual: A Water Resources Technical Publication (1995).

3. Exhibit 3 – extract from Les Hamill, Understanding Hydraulics (3rd ed, 2011, Red Globe Press).

4. Exhibit 4 – David A Keith and Judith Scott, Native Vegetation of Coastal Floodplains – A Diagnosis of the Major Plant Communities in New South Wales (2005) 11 Pacific Conservation Biology 81 (Keith and Scott 2005).

5. Exhibit 5 – David Keith, Ocean Shores to Desert Dunes: The Native Vegetation of New South Wales and the ACT (NSW Department of Environment and Conservation, 2004) (Keith 2004).

6. Exhibit 6 – extract from “Appendix 5 – Equivalent Ecological Communities” of NSW Department of Environment and Climate Change, Targeted Vegetation Survey of Floodplains and Lower Slopes on the Far North Coast (2008).

7. Exhibit 7 – entries for Alternanthera denticulata R.Br, Parsonsia straminea (R Br) F Muell and Dichondra repens J R Forst & G Forst from NSW FloraOnline accessed 8 February 2019.

Departmental officer affidavits read by Minister

13. Ms Santina Camroux Acting Director of Risk and Resilience at the NSW Department of Planning and Environment (Department) affirmed an affidavit dated 1 February 2019. On 13 November 2015, the Department released the “Explanation of the Intended Effect for the Coastal Management State Environmental Planning Policy” (EIE). The EIE stated that submissions in response to the EIE were invited up to 29 February 2016. A draft Coastal Management Bill (Bill) and draft Coastal Management Manual (Manual) were also released. The draft Bill and draft Manual were publicised on the OEH, the Department and the NSW Government “Have Your Say” website.

14. During and after the public consultation period (between 13 November 2015 and 29 February 2016), the Department held 12 public information and feedback sessions in six locations along the NSW coast. In May 2016, the OEH and the Department released a document titled “NSW Coastal Management Reforms: Report on Submissions Received” which reported on the 452 submissions received by the Department during the public consultation period.

15. Between 11 November 2016 and 21 January 2017, the Department publicly exhibited the draft CM SEPP and maps via an online viewer. The Department received 266 submissions. The draft coastal wetlands maps prepared for inclusion in the CM SEPP used the coastal wetlands maps in State Environmental Planning Policy No 14—Coastal Wetlands (SEPP 14) as a base. Draft maps were then developed using data and analysis which had been prepared by the Department and consultants. Twenty-four local councils submitted datasets related to coastal wetlands and littoral rainforests, requesting that this data be taken into account in amending the draft CM SEPP maps. The final maps showing the coastal wetlands area mapped in the whole State were made up of 5,832 discrete polygons.

16. On 7 March 2018, the Department provided a briefing note to the Minister for the purpose of the Minister making a recommendation to the Governor that the CM SEPP be made. The briefing note recommended inter alia:

1.   Approve the form and content of the proposed State Environmental Planning Policy (Coastal Management) 2018 (proposed SEPP) at Attachment A, the maps < and the Standard Instrument (Local Environmental Plans) Amendment (Coastal Management) Order 2018 (proposed Order) at Attachment B under section 3.20 of the Environmental Planning and Assessment Act 1979 (the Act).

…

3.   Form an opinion that the proposed SEPP is of State and regional significance under section 3.29 of the Act.

…

5.   Recommend to the Governor that he make the proposed SEPP and proposed Orders by:

•   signing and dating the proposed SEPP and proposed Order

•   signing and dating the Minute Papers for the Executive Council (Attachment D and E)

•   forwarding the following documents to the Executive Council for the Governor’s approval:

•   the signed proposed SEPP and proposed Order

•   the signed Minute Papers for the Executive Council

•   the Explanatory Notes for the Governor (Attachment F and G)

•   the Opinion of Parliamentary Counsel that the proposed SEPP and proposed Order may be legally made (Attachment H and I)

…

17. The Minister signed the briefing note and “Minute Paper for the Executive Council” on 7 March 2018, recommending to the Governor that the SEPP be made. The Governor signed the Minute Paper for the Executive Council on 14 March 2018.

18. On 23 March 2018, the Minister published a notice in the NSW Government Gazette that the Governor had made the CM SEPP. On 3 April 2018, The CM SEPP was published on the NSW Legislation website at <  The CM SEPP maps were also published on the Department’s website.

19. Ms Emily Ryan solicitor for the Minister affirmed an affidavit dated 5 August 2019. The briefing note to the Minister dated 7 March 2018 contained a website link for the CM SEPP maps as these existed at the time the briefing note was made, < That link continues to operate as a link to a website containing the CM SEPP maps as amended on 16 December 2018. An archive version of the CM SEPP maps as they existed at the time of the briefing note to the Minister (7 March 2018) was created around the time of the amendment to the maps on 16 December 2018.

20. The archive version of the CM SEPP maps site is now available at <  Webpage). With the exception of the heading, the CM SEPP maps on the Archive Webpage are identical to those which existed at the time of the briefing note to the Minister and the making of the CM SEPP.

21. The Archive Webpage contains a legend entitled “Coastal Viewer Legend”. The Coastal Viewer Legend contains categories of maps available for viewing on the webpage including:

1. “Coastal Wetlands and Littoral Rainforest Area Map”;

2. “Coastal Vulnerability Area Map”;

3. “Coastal Environment Area Map”; and

4. “Coastal Use Area Map”.

22. Next to the heading “Coastal Wetlands and Littoral Rainforest Area Map” is a dash which is a click control for a drop-down menu. When the drop-down menu is showing, the following four items appear under the heading “Coastal Wetlands and Littoral Rainforest Area Map”:

1. “Coastal Wetlands”;

2. “Proximity Area for Coastal Wetlands”;

3. “Littoral Rainforest”; and

4. “Proximity Area for Littoral Rainforests”.

23. When the dash next to “Coastal Wetlands and Littoral Rainforest Area Map” is clicked, the four drop-down menu items disappear.

24. Part of the Area Map applying to the Reysson land is below. The solid blue indicates coastal wetlands and the blue hatching indicates proximity area for coastal wetlands. The Reysson land appears the same on the original and the amended Area Map referred to in Ms Ryan’s affidavit.

Ecology

Dr Clements

25. Dr Clements ecologist conducted a flora survey involving 73 quadrats in plots or transects and 14 transects and 19 spot locations across the Reysson land. Dr Clements’ data was provided in her first report dated 22 October 2018. This recorded the location, percentage cover and where relevant maximum heights of the 185 various species identified.

26. Dr Clements interpreted this data with reference to the indicative species of various classes of the wetland vegetation communities identified by Keith 2004. In most plots Dr Clements found no matches or marginal matches of indicative species cover.

27. Dr Clements applied a number of disqualifying filters to the analysis she conducted of the observed floristic species. She adopted the approach that if she observed what she considered to be characteristic floristic qualities of a wetland in an area, an area would not be mapped as being a wetland if the relevant vegetation was:

1. on disturbed soil;

2. itself disturbed vegetation;

3. on altered landforms;

4. in an unstable area (including as identified by Dr Martens based on hydrology);

5. not naturally occurring; and

6. located in an area that Dr Martens had identified as being hydrologically unstable.

28. Dr Clements applied Dr Martens’ work on hydrology (summarised below) to reach an overall conclusion as to the areas which display both the hydrological and floristic characteristics of coastal wetlands. The resultant map (Figure H-5 of Dr Clements’ report dated 22 October 2018) shows that the only area of the Reysson land displaying both sets of characteristics is a strip of mangrove on natural soil to the southeast of Lot 4.

29. Dr Clements also gave her opinion of the appropriate buffer which should be provided around any identified coastal wetlands of 40 metres. She did not consider the 100-metre “proximity area for coastal wetlands” was appropriate.

Mr Parker

30. Mr Parker ecologist conducted five Biodiversity Assessment Method (BAM) plots to determine vegetation integrity scores (or vegetation quality) on the Reysson land. Figure 12 in Mr Parker’s report dated 1 February 2019 maps the vegetation type, BAM plots and vegetation integrity scores on the land.

31. In the joint ecology expert report dated 24 July 2019, Mr Parker undertook data analyses using Dr Clements’ field data. He reviewed studies of wetland communities including Keith 2005 and Sheringham et al, Targeted Vegetation Survey of Floodplains and Lower Slopes on the Far North Coast (NSW Department of Environment and Climate Change, 2008) (Sheringham 2008) and identified a list of “characteristic wetland species”. Applying this list to the data Dr Clements collected on the Reysson land, Mr Parker concluded that 145 of the species recorded by Dr Clements (or 78 percent) were species which characteristically occur in coastal wetlands.

32. In cross-examination the following differences between the experts were identified:

1. approaches to indicative and characteristic wetland species;

2. Dr Clements’ and Mr Parker’s application of Keith 2004, Keith and Scott 2005 and Sheringham 2008 in determining what are indicative/characteristic wetland species;

3. the methodologies used by Dr Clements and Mr Parker in determining whether an area on the Reysson land contained indicative/characteristic wetland species;

4. whether man-made factors affecting hydrological stability disqualify land as having the floristic characteristics of a wetland;

5. Mr Parker’s reliance on plant community types in his analysis;

6. the ecological features of groundwater-dependent ecosystems broadly compared to that of wetlands specifically; and

7. whether wetland ecosystems are dependent on the surface expression of groundwater.

Key differences in Dr Clements’ and Mr Parker’s evidence according to Reysson

33. The key differences between the ecologists were:

1. Dr Clements focused on “indicative wetland species” and relied on Keith 2004 as listing those species. Mr Parker focused on “characteristic wetland species” and relied on Keith and Scott 2005 and Sheringham 2008 as listing those species;

2. Dr Clements excluded areas from the Reysson land as being wetlands on the basis that they contained plants that also occur in dryland conditions. Mr Parker did not;

3. Dr Clements applied a number of disqualifying filters before concluding areas were wetlands which Mr Parker did not apply; and

4. Mr Parker calculated vegetation integrity scores and Dr Clements did not.

Hydrology and soil

34. A number of groundwater bores were drilled on the Reysson land by Dr Martens and Mr Sutherland and water table levels were recorded. Dr Martens and Mr Sutherland agreed that tides on the Reysson land reach a level of 0.85 metres Australian Height Datum (AHD) and generally agreed on the areas that would reach this level.

Dr Martens

35. Dr Martens hydrologist, engineer and environmental scientist prepared a report dated 24 October 2018 and a report in reply to Mr Sutherland’s report dated 19 June 2019. Dr Martens relied on extracts from various scientific and policy documents relating to the definitions of wetlands and their hydrological characteristics as contained in Ex D, set out above in [11(d)]. He mapped areas where tidal inundation or shallow groundwater had the potential to provide the hydrological characteristics of wetlands and then removed areas which were hydrologically unstable in his view.

36. Dr Martens considered that in areas not subject to tidal inundation, the characteristics of a groundwater-dependent wetland are met in areas where there is a high probability of groundwater reaching the surface for significant periods of time during the year. In an area such as the Reysson land with high sand content and permeable soils, this will occur in areas where the average groundwater depth is less than 0.3 metres below the ground surface. It is only under such conditions that the land will be at least intermittently “wet”.

37. Dr Martens conducted a groundwater survey, the results of which are recorded in the joint expert report (hydrology and floristic characteristics, and soil) dated 24 July 2019. He found that the only areas with shallow groundwater (less than three metres below the surface) are essentially minor patches on the southeast fringes of the Reysson land and an area to the north-west corner of Lot 2 that is affected by flow from the golf course drain and the valve to the drainage channel.

38. Dr Martens considered that a hydrological characteristic of wetlands is some degree of stability for the hydrological regime in order to create and continue wetland conditions. Dr Martens stated that land should not be accepted as displaying the hydrological characteristics of a wetland unless the characteristics:

1. are stable and not susceptible to change;

2. occur naturally and in an unaltered state;

3. occur on undisturbed land (that is, land that is neither raised nor lowered); and

4. occur in an integrated form on a certain scale, not in fragmented places.

39. Dr Martens concluded that the following areas had “unstable” hydrology not capable of sustaining a persistent coastal wetland: approved filling areas, canal areas, borrow pits, farm dams, drainage easements and a managed drainage area. For example, Dr Martens stated that the borrow pits are not hydrologically stable as there is an unperformed condition of development consent requiring them to be filled in.

40. Dr Martens also gave his opinion that the appropriate buffer around coastal wetlands should be 40 metres and informed by site-specific study and knowledge of topography inter alia. The 100-metre “proximity area for coastal wetlands” was not appropriate.

Mr Sutherland

41. Mr Sutherland agricultural and environmental scientist and hydrographer concluded that the hydrological conditions that predispose the Reysson land to being a wetland are:

1. the occurrence of sufficient intermittent, regular or permanent inundation events that permit the development of any of seven listed wetland types; and/or

2. the maintenance of sufficiently elevated water tables, related to those inundation events, to enable the development of any of the seven wetland types.

42. Mr Sutherland disagreed with Dr Martens and Dr Hazelton that analysis of soil types is an appropriate way of determining hydrological characteristics. He also disagreed with the approach of limiting the analysis to areas exhibiting the relevant characteristics “naturally”.

43. Mr Sutherland measured the electrical conductivity of various bores in Lots 2 and 4 and mapped groundwater levels of less than or equal to two metres on the Reysson land by interpolating levels measured in June 2009. He concluded that the total area of Lots 2 and 4 that have measurable hydrological characteristics of coastal wetlands and are coincident with Mr Parker’s mapping of the coastal wetland vegetation was 2.7 hectares (38.6 percent) and 2.6 hectares (16.3 percent) of the lots respectively.

Dr Hazelton

44. Dr Hazelton soil scientist stated that wetland soils, classified as hydric soils or hydrosols, have distinctive characteristics that persist in the soil during both wet and dry periods. If these characteristics are observed, it is an indication that the soils formed in saturated conditions. If not observed, it is an indication the soils have not experienced any prolonged conditions of saturation, flooding or ponding. The presence of mottles in the soil is also an indicator of water table fluctuation.

45. Dr Hazelton considered 44 soil pits and boreholes excavated on the Reysson land, made observations about structure, colour and saturation and then analysed the results to determine whether the soils evidenced wetland characteristics. She found that most of the soils had been modified although some were natural soils (being sand podzols). None of those soils, whether modified or natural, had the characteristics of wetland soils. Any evidence of wet soil was at a depth of greater than 0.5 metres.

46. Issues raised in cross-examination concerning hydrology and soil included:

1. in relation to characteristics of wetlands:

1. whether surface expression of water is required and what this constitutes (groundwater table depth and soil saturation);

2. whether man-made factors affecting hydrological stability disqualifies land from being classified as a wetland;

2. Mr Sutherland’s use of interpolation to map groundwater levels;

3. meaning of capillary rise and whether this was accounted for in the groundwater survey data;

4. whether soil on the Reysson land was saturated and how soil moisture is measured;

5. Mr Sutherland’s reliance on a geological survey to characterise the soil on the Reysson land as hydrosols; and

6. the impact of tidal flows given the man-made flood control and drainage on the Reysson land identified by Reysson.

Key differences in Dr Martens’ and Mr Sutherland’s evidence

47. Firstly, Dr Martens stated that the criteria for a groundwater-dependent ecosystem wetland is that groundwater needs to be at or above the surface for significant periods of the year in order to maintain saturated soils. Mr Sutherland disagreed and stated that all that is necessary is for levels of groundwater to reach the root zone of the wetland species.

48. Secondly, Dr Martens stated that observing a water table within 0.3 metres (not two metres according to Mr Sutherland) of the soil surface is a good indicator of wetland status. The experts relied on different policies and guidelines.

49. Thirdly, according to Dr Martens, for a hydrological system to be a wetland there must be some degree of stability. Mr Sutherland disagreed and stated that it was for ecologists to determine the ecological health of the purported wetland communities in respect of distribution, diversity and richness.

50. Fourthly, Mr Sutherland stated that the groundwater survey data did not account for capillary rise and so a capillary rise of 0.3 or 0.5 metres should be subtracted from the groundwater level values. Dr Martens stated that the groundwater level measured in the standpipes or the bores was the groundwater level plus the level of capillary rise.

Summary of key issues in expert evidence

51. The key disputed issues addressed in the course of the expert evidence summarised above were:

1. the hydrological characteristics of coastal wetlands;

2. the disqualifying filters Dr Martens applied;

3. what the data showed specifically about the Reysson land regarding hydrological characteristics, in particular tidal inundation and groundwater levels;

4. the significance, if any, of soil type to determining whether land is a coastal wetland;

5. the appropriate floristic species and their extent and location identified on the Reysson land;

6. the relevant criteria to apply when assessing whether land has the floristic characteristics of a coastal wetland;

7. the disqualifying filters Dr Clements applied; and

8. whether the land or parts thereof constitute a coastal wetland.

52. Submissions on the expert evidence constituted 25 out of 45 and 28 out of 48 pages of Reysson’s and the Minister’s updated closing written submissions respectively. The Court attended the Reysson land for one day of hearing, heard three days of concurrent expert evidence and approximately four days of submissions in relation to that evidence.

Reysson’s submissions on definition of “coastal wetlands”

53. Reysson submitted that wetlands have to be wet for some of the time and the Reysson land is not except in parts where there is impaired drainage.

54. There is no definition of “wetland” or “coastal wetlands” in the CM Act, the EPA Act or the CM SEPP. According to Reysson it is necessary to define these words.

55. Reysson submitted as follows. In determining the ordinary and natural meaning of words dictionary definitions can be considered. Both the Macquarie Dictionary (online) and Oxford English Dictionary (online) define “wetland” as an area of land usually saturated with water as a marsh or swamp. Other statutes which have defined terms where they are in the same legislative scheme can also be considered. In Hunters’ Hill Council v Minister for Local Government (2017) 224 LGERA 1; [2017] NSWCA 188 (Hunters’ Hill) at [97] (a council amalgamation case) the Court of Appeal (Basten JA, McFarlan JA and Sackville AJA agreeing) stated that it is legitimate to look at other legislation enacted broadly contemporaneously with the legislation to be construed (in pari materia principle) because a term may have obtained a meaning by multiplicity of statutory references. In that case the meaning of “contiguous” in other statutory contexts was considered.

56. Reliance was also placed on Commissioner of Taxation v ICI Australia Ltd (1971) 127 CLR 529 (ICI). At issue was whether the meaning of mining as including recovering salt under state legislation could be considered in construing “mining operations” under Commonwealth taxation law. Gibbs J held that the state law could be considered to ascertain the meaning of the term: at 581. While not controlling the interpretation of Commonwealth legislation it was instructive in construing the Commonwealth act.

57. Broadly, contemporaneous legislation to the CM Act includes the Native Vegetation Act 2003, which defined “wetland” in s 4. This definition informs the phrase “coastal wetlands” in s 6(1) of the CM Act, making clear that this means land subject to regular cyclical inundation. The Native Vegetation Act was repealed in August 2017 by the Biodiversity Conservation Act 2016, which also made a suite of amendments to the LLS Act. Sch 5 to the Land Management (Native Vegetation) Code 2017 (2017 Code) contained the following definition of “wetland”:

Wetland means a natural body of water, other than a floodplain (such as a marsh, billabong, swamp or sedgeland) that is inundated cyclically, intermittently or permanently with water and vegetated with wetland plant communities.

58. The 2017 Code was repealed on 9 March 2018, less than a month before the CM SEPP was gazetted and was replaced by the Land Management (Native Vegetation) Code 2018 (2018 Code) which is currently in force and contains the same definition of “wetland” in Sch 5.

59. The LLS Act and Local Land Services Regulation 2014 (LLS Regulation) are in pari materia with the CM Act and CM SEPP: see s 60I(2)(i) of the LLS Act and cl 108(5) of the LLS Regulation.

60. While there is no definition of “wetland” in the EPA Act, cl 38 of Sch 3 to the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) contains the following definition of “wetland”:

wetland means:

(a)   natural wetland including marshes, mangroves, backwaters, billabongs, swamps, sedgelands, wet meadows or wet heathlands that form a shallow waterbody (up to 2 metres in depth) when inundated cyclically, intermittently or permanently with fresh, brackish or salt water, and where the inundation determines the type and productivity of the soils and the plant and animal communities, or

(b)   artificial wetland, including marshes, swamps, wet meadows, sedgelands or wet heathlands that form a shallow water body (up to 2 metres in depth) when inundated cyclically, intermittently or permanently with water, and are constructed and vegetated with wetland plant communities.

61. The same definition of “wetland” is adopted in the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument) prescribed under s 3.20 of the EPA Act. That definition is adopted in the CM SEPP by cl 4(2).

62. There are also definitions of “wetland” in s 198A of the Fisheries Management Act 1994 and s 4 of the Marine Estate Management Act 1984. Each of these definitions refers to intermittent or permanent inundation. This is unsurprising – it is to be expected that, to qualify as a “wetland”, an area of land would need to be at least intermittently wet.

63. Further support for the proposition that NSW legislation uses the term “wetland” to refer to land which is at least intermittently inundated can be found in the following provisions:

1. Clause 108 of the Local Government (General) Regulation 2005 requires land categorised as a “natural area” to be further categorised as wetland under s 36(5) of the Local GovernmentAct 1993 “if the land includes marshes, mangroves, backwaters, billabongs, swamps, sedgelands, wet meadows or wet heathlands that form a waterbody that is inundated cyclically, intermittently or permanently with fresh, brackish or salt water, whether slow moving or stationary”;

2. Schedule 1 to the Protection of the Environment Operations Act 1997 (POEO Act) includes “wetlands” as falling within the definitions of “natural waterbody” (Sch 1, cl 3(3)) and “waterway” (Sch 1, cl 25(3)); and

3. The Dictionary to the Water Management Act 2000 defines “lake” as including “a wetland, a lagoon, a saltmarsh and any collection of still water, whether perennial or intermittent”.

64. The Standard Instrument was amended when the CM SEPP was introduced by order on 3 April 2018.

65. Reysson does not submit that the definition in the Standard Instrument should be applied to the CM Act as the latter is not subject to it. The CM SEPP is. The Standard Instrument reflects the common understanding of wetland: see ICI at 581.

66. These definitions show that an important feature of wetlands is that they are wet in some manner at some time. In the absence of any context indicating a contrary intention it is presumed Parliament intended to give the same meaning to the same words when used in a subsequent statute in a similar connection: see AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 at [76].

67. If the words are technical in meaning then regard can be had to expert evidence. Reference was made to numerous policy documents published by the NSW government in Ex D listed above at [11(d)] inter alia. The various statutory definitions reflect the content of a wide range of scientific publications such as in addition Paul Adam et al, Coastal Wetlands of New South Wales: A Survey and Report prepared for the Coastal Council of New South Wales 1985 (Coastal Council of NSW, 1985). Reysson’s written submissions referred to and extracted five definitions or discussions of wetlands in various scientific and policy publications. All these references include the requirement for at least intermittent inundation of land and sufficient presence of water to affect the soils or substrate and affect development of ecological communities occurring on the land. The water table must express itself on the surface for at least some time on a regular basis whether cyclically or intermittently.

68. Once the meaning of wetland is clear according to Reysson the next step is how the wetland is to be identified. The issue of jurisdictional fact arises in the latter context.

69. The Minister submitted that Reysson’s reliance on various definitions drawn from entirely different statutory and other contexts was flawed. Fundamentally the question posed by s 6(1) of the CM Act is not the meaning of “wetland” or “coastal wetlands” but rather what are the “hydrological and floristic characteristics of coastal wetlands”. Reysson’s submissions on the natural and ordinary meaning of coastal wetlands and its approach if a technical term are irrelevant.

Jurisdictional fact? (Grounds 1 and 2)

70. The key legal issue in relation to Grounds 1 and 2 is whether the identification of the hydrological and floristic characteristics of land mapped within the “coastal wetlands and littoral rainforests area” (CWLR area) is a jurisdictional fact. If it is, the Court can determine the issue as a matter of objective fact. In the absence of a determination by the Court that land displays the relevant characteristics no power exists to include land in the Area Map within the CM SEPP. Ground 1 applies that argument to the CM SEPP in its entirety. Ground 2 addresses the same argument but focusses only on the Reysson land. Both grounds cover the same legal territory.

Reysson’s submissions

71. The power to identify land as being within the CWLR area in the CM SEPP for the purposes of the CM Act extends only to land that meets the statutory description in s 6(1) of the CM Act, “land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests”. The issue of whether or not the parts of the Reysson land mapped within the CWLR area meet the statutory description is an issue of fact which this Court must determine de novo, and in doing so, the Court is not confined to the material which may have been used by the original decision-maker (see eg R v Blakeley; Ex parte Association of Architects etc of Australia (1950) 82 CLR 54; [1950] HCA 40 at 90-92 (Fullagar J); Re Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178; [1985] HCA 55 at 183-4; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 (Timbarra) at 63; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 (Enfield) at [38], [50], [60]; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 (Pallas Newco) at [88].

72. A clear statutory indicator that the legislature intended the identification of various coastal management areas within the state environmental planning policy (SEPP) as a matter the subject of more detailed direction and limitation than the general exercise of power under s 3.29 of the EPA Act is Pt 2 of the CM Act (ss 6-10). The legislature has demonstrated intent to establish a specific framework for a SEPP dealing with these matters, rather than leaving its content at large to the discretion of the Governor as advised. For example, any identification of the CWLR area can only be made “for the purposes of [the CM] Act” (CM Act s 6(1)) which is a specific subject matter, not one which is functional and discretionary. Further, a provision of an EPI that identifies a coastal management area can only be made with the recommendation of the Minister Administering the CM Act: CM Act s 10(2).

73. The definition of the CWLR area in s 6(1) of the CM Act proceeds in stages. Firstly, the CWLR area is defined as being land identified in a SEPP to be the CWLR area, a purposive power (which cannot take place if the map is not before the Governor (Ground 5). Secondly, s 6(1) contains a factual description which is a factual pre-condition to the power to make a SEPP. The following proviso introduces a restriction on the power to identify land – it must be “land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features”. Importantly, this proviso is not couched in terms of subjective satisfaction of a person or officer, but in terms of actual physical characteristics of the land itself (“… being land ...” [emphasis added], referring to characteristics that the land already has, not in thought or concept but actuality). These are characteristics capable of objective verification by the application of appropriate expertise. They do not involve an evaluative judgment of matters of fact and degree when determining whether the statutory description is met (Pallas Newco at [53]; Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147 (Dungog) at [179]).

74. When the CM Act was enacted the CM SEPP was also made. The CM SEPP contains cl 10 which substantially impacts on the ability of a landowner to develop land. This is a major change from SEPP 14. The CM SEPP imposes an economic barrier to development reducing the economic viability of land in the interests of restoring coastal wetlands. That the identification of land has such consequences suggests that only if coastal wetlands are correctly identified would they be subject to the CM SEPP.

75. If the Minister’s construction of s 6 was accepted, then the words “… being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features” would have no work to do other than the deeming of something which may be a statutory fiction. These words must be given work to do: Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 at 414; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [39]. On the Minister’s construction there would be nothing to prevent the CWLR area being identified at any place in NSW, regardless of its attributes or location.

76. The potential need for some evaluation to determine whether or not a state of facts exist (for example in this case, the application of expertise in hydrology and floristics) is rarely determinative of a matter not being a statement of jurisdictional fact: Dungog at [184]-[185] (Basten JA, Gleeson JA and Preston CJ of LEC concurring).

77. Contrary to the Minister’s submissions, the need for evaluative judgment is not of itself determinative of a provision not being one of jurisdictional fact: see Enfield and Foxtel Management Pty Ltd v Australasian Competition and Consumer Commission (2000) 173 ALR 362; [2000] FCA 589. For example, in Enfield the High Court held that a court could determine as a matter of jurisdictional fact whether a particular development proposal fell within the statutory definition of a type of development.

78. The potential inconvenience that may arise from classifying a factual reference in a statutory formulation as a jurisdictional fact is relevant but not decisive. The discretionary nature of relief in judicial review proceedings permits any inconvenience to be minimised: Timbarra at [91] and Pallas Newco at [66]. That is particularly the case if severance of the invalid part of the decision is available (which was in this case conceded by the Minister). Further, the inclusion in legislation of a privative clause (in this case s 3.27 of the EPA Act) protecting decisions from invalidity but permitting challenges within a strictly limited time window considerably attenuates any such inconvenience: Pallas Newco at [69]-[85].

79. The Minister’s reliance on s 3.30 of the EPA Act is misplaced. The only mandatory consultation required by that section is with the Greater Sydney Commission in relation to land within the Greater Sydney Region and even that is only contingent on the Minister’s opinion on the matters in s 3.30(2)(b). Otherwise the publicising of a proposed SEPP and seeking and considering public submissions is a matter entirely for the Minister’s discretion. There is no mandatory statutory facility for such consultation in making a SEPP identifying coastal management areas for the purposes of the CM Act: cf Huntlee Pty Ltd v Sweetwater Action Group Inc (2011) 185 LGERA 429; [2011] NSWCA 378 (Huntlee) at [120] where consultation was mandatory.

80. Contrary to the Minister’s submissions, if the relevant time for determination of the presence of the characteristics of coastal wetland is the date on which the CM SEPP was made, the Court is at no real disadvantage in determining these matters. The statutory limitation on challenges means that any challenge will be brought a short time after gazettal so the Court does not have to look far into the past to assess characteristics. Indeed the Court is better positioned to establish the characteristics of land retrospectively based on available evidence, rather than prospectively based on hypothesis and extrapolation.

81. Moreover the task of mapping NSW for the purposes of the CM SEPP was not complex or difficult because it involved simply adjusting the boundaries of SEPP 14 according to submissions outlining additional work that had occurred in the interim between SEPP 14 and the CM SEPP.

82. The wrongful identification of land as coastal wetlands when it is not produces highly complex consequences. Under cl 10 of the CM SEPP most development would constitute designated development and would be permissible only with consent. If a coastal wetlands is wrongly located or smaller than what is shown on the Area Map then the 100-metre proximity buffer will also vary.

Minister’s submissions

83. The power of the Governor to make the CM SEPP does not depend on the existence of an objective jurisdictional fact, such that the Court must determine for itself if the areas identified in the CM SEPP as coastal wetlands area are, as a matter of objective fact, comprised of “land which displays the hydrological and floristic characteristics of coastal wetlands … and land adjoining those features”. The statutory scheme, on its proper construction, involves the Governor acting on the advice of the Executive Council bearing the responsibility to determine which areas have the requisite characteristics and to identify them accordingly in the Area Map.

84. Reysson must establish that the legislature intended that the objective existence of a particular fact (in this case, the fact that the land possesses the requisite characteristics) is a condition of the exercise of the power to make a SEPP which identifies the land as having such characteristics: Huntlee at [114].

Structure of statutory scheme

85. There are strong indications in the statutory scheme that the power to make a SEPP of this kind was not intended to be subject to review on an objective basis of the true characteristics of the mapped areas. The first contraindication is the character of the power being exercised. It would be unusual to have the validity of delegated legislation made by the Governor turn on the existence of objective jurisdictional facts, apt to be revisited by a court. This is due to the inconvenience of having an EPI being liable to invalidation if a person is able to persuade a court to take a different view about the hydrological and floristic characteristics of a particular area of land.

86. Secondly, the criterion which is suggested to be an objective jurisdictional fact is not expressed as a condition of the exercise of the power. Section 3.29 of the EPA Act is the source of the Governor’s power to make a SEPP and is stated in very broad terms. This power is conditional only on the advice of the Executive Council (which was given in the present case and was not challenged) and the additional statutory requirement that the SEPP be “for the purpose of environmental planning by the State”: Huntlee at [95]. Section 6 of the CM Act (and similarly ss 7-9) does not purport to restrict or condition that power. It describes one of the consequences that the contents of a SEPP may have where it is made for the purposes of identifying coastal management areas. The structure of s 6 must be contrasted with s 10(2) of the CM Act which does in terms restrict the power to make a SEPP that identifies a coastal management area, by requiring that there must be a recommendation of the Minister Administering the CM Act.

87. Section 6(1) describes the characteristics that make it appropriate for land to be identified as a coastal wetlands or littoral rainforest area, but it is not structured in such a way as to say either expressly or implicitly that the power to make a SEPP that identifies such areas only exists if the characteristics exist. The intention is that the authority responsible for making the SEPP will need to exercise judgment in identifying areas that have the requisite characteristics or adjoin areas that have the requisite characteristics and incorporating those areas into maps that form part of a SEPP. Where a factual reference occurs in the context of a step that necessarily arises in the course of the consideration by the relevant decision-maker of the exercise of the power, that is an important and usually determinative indication that the fact in question is not a jurisdictional fact: Timbarra at [44].

Equivalent criteria for other areas in the coastal zone

88. If s 6(1) is a jurisdictional fact then so would be ss 7(1), 8(1) and 9(1). All involve contestable judgments of factual and policy considerations, suggesting they are not.

89. Section 9(1) provides that “coastal use area” means the land identified by a SEPP to be the coastal use area for the purposes of the CM Act, being land adjacent to coastal water, estuaries inter alia where development is or may be carried out (at present or in the future). A test of this kind, which requires the consideration of where future development might be carried out and policy choices, is highly unlikely to be a matter of objective jurisdictional fact to be determined by the Court on judicial review.

Nature of task to be performed

90. The nature of the judgment to be exercised makes it highly unlikely that the legislature intended that the validity of the SEPP would depend on a court making an objective assessment about the characteristics of the land being mapped. The area covered by the CM SEPP is vast. The Governor made a SEPP which covered the entire coastal zone of NSW. The map relating to the Reysson land is just one of 5,832 of that kind (Affidavit, Ms Camroux, above at [15]). The preparation of those maps, involving the identification and mapping of land having the relevant characteristics, was a complicated and technical task that took several years and involved the Department consulting with multiple bodies (Affidavit, Ms Camroux, above at [14]-[15]). The Department considered local data sets provided by councils and experts were involved. There is a complicated evaluative exercise involved in identifying the hydrological and floristic characteristics of land. There is also an important evaluative judgment involved in identifying what land should be identified as “adjoining” such land. Applying the principles summarised by Perram J in Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; [2012] FCAFC 65 (Pilots Association) at [147], the task here is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, suggesting that Parliament intended that the decision-maker would have power to make its own determination of that matter, not the Court, see also Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (2019) 372 ALR 695; [2019] NSWCA 216 (Macfarlan JA) at [137].

91. Section 6(1) of the CM Act is expressed in the present tense. If Reysson’s construction of s 6(1) is correct, the Court must consider the characteristics of the land as at the date the instrument was made, rather than the date the Court comes to consider the evidence. In making this assessment the Court is likely to be at a disadvantage as compared with the original decision-maker due to the difficulty in ascertaining what the characteristics of the land were in the past. It is unlikely that the legislature would have intended the validity of a SEPP to turn on such an impaired evaluation by the Court.

Resulting inconvenience

92. The inconvenience which may attend the conclusion that a matter is an objective jurisdictional fact, subject to being revisited by a court, is itself an indicator that this is unlikely to have been what Parliament intended (Pilots Association).

Provision of consultation

93. It is significant that s 3.30 of the EPA Act provides for consultation on a proposed SEPP. This is a legislative mechanism through which interested persons can comment on what is proposed, which could include raising any disagreement about the identification of land as “coastal wetlands” in proposed maps. Such a statutory facility is an indication that the matter is to be determined by the statutory authority, not a court: Huntlee at [120].

Absence of expressly subjective language

94. Merely because s 6(1) is not expressed in subjective terms is far from a conclusive indicator that the provision creates an objective jurisdictional fact: Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd (2005) 21 BCL 364; [2005] NSWCA 229 at [44]; Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275 at [38]-[39]. As Basten JA explained in Barrick Australia Ltd v Williams in determining how significant it is that Parliament has used objective language, the context of the relevant provision must be considered. In this case the relevant context underpinning s 6(1) is that it is not a provision that confers or conditions the power to make a SEPP but rather identifies the consequences of a SEPP that is made. As not describing the exercise of power it does not lend itself to subjective language.

No jurisdictional fact in s 6(1) of the Coastal Management Act 2016

95. Whether legislation creates a jurisdictional fact or commits the determination as to the existence of the fact to the repository of the relevant power is a question of statutory construction: Timbarra at [39] (Spigelman CJ, Mason P and Meagher JA agreeing). The authorities identify a number of factors, none decisive on their own, which aid in the necessary task of construction. As submitted by the Minister, in Pilots Association at [147], Perram J summarised the approach unanimously adopted by the High Court in Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10 at 303:

… first, whether a statutory power is to be read as subject to the formation of an opinion about the existence of a matter by the decision maker or, instead, by the bare existence of the matter itself is a question of statutory construction (at 466); secondly, the resolution of that question is assisted by an examination of the nature of the task reposed in the decision maker — where that task is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that Parliament intended that the decision maker would have power to make its own determination of that matter (at 466); thirdly, the inconvenience which may attend the conclusion that a matter is a jurisdictional fact is itself an indicator that this is unlikely to have been what Parliament intended (at 466); and, finally, the specialist qualifications of the members of an administrative tribunal may well be an indicator that it is this body, with its expertise, that is to resolve the issue at hand (at 467).

Structure of statutory scheme

96. I note that on the basis that the CM Act, CM SEPP and the EPA Act have no definition of “coastal wetlands”, Reysson made lengthy submissions in relation to definitions of “wetland” in other legislation, policy documents and scientific papers, as summarised above in [54]-[67]. Apart from attempting to set the scene for its expert evidence which focussed on the need for wetlands to have some periodic inundation with water expressed on the surface at some stage(s), that material has little relevance to the statutory construction task I am about to embark on in relation to jurisdictional fact. Reysson did not tie in these submissions with its arguments on jurisdictional fact in a way that was clear to me. It submitted that it was obvious that much of the Reysson land was dry and could not be wetland given the definitions relied on and given its expert evidence. That submission does not assist in the statutory construction task I undertake below.

97. That there is no definition of “coastal wetlands” in those instruments does not necessarily mean that definitions in other legislation must be considered. The usual statutory construction approach is that they would not, as the Minister submitted. While Reysson sought to rely on the in pari materia principle, as applied in Hunters’ Hill and ICI, there is no obvious basis for doing so in this case.

98. Turning to the issue of jurisdictional fact, which does not require me to form a view about the definition of coastal wetlands, as identified in Enfield by the High Court at [28] the term “jurisdictional fact” is used to identify a criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. In Dungog the Court of Appeal at [182]-[185] identified that the issue required consideration of the structure of an act (there the POEO Act) and whether the provisions separated out preconditions to the exercise of power to grant a licence from circumstances governing the exercise of the power. The Court of Appeal observed that (at [184]):

151. The purpose of specifying the proximity area is apparent from cl 11 of the CM SEPP. The effect of land falling within the 100-metre buffer is that the relevant planning controls are engaged. This does not suggest a “one-size-fits-all” approach.

152. The CWLR area includes both coastal wetlands and land adjoining coastal wetlands and not the proximity area. The Minister submitted that this is a semantic rather than a decisive issue.

Consideration – Ground 3 not established

155. The parties agreed the relevant principle of administrative law is as stated in South Australia v Tanner at 167, namely that subordinate legislation is valid when it is “capable of being considered to be reasonably proportionate to the end to be achieved”. A regulation must be “so lacking in reasonable proportionality as not to be a real exercise of the power”: at 168. Attorney-General (SA) v Corporation of the City of Adelaide at [55]-[59] (French CJ) and the authorities cited therein confirm that striking down subordinate legislation on the basis that it has a disproportionate effect must meet a high hurdle for reasonable proportionality for delegated legislation made to further a purposive power. Most challenges fail.

156. I have found above that a determination of an area pursuant to s 6(1) of the CM Act does not give rise to a jurisdictional fact. As the Minister submitted that must also apply to the “land adjoining”, as also specified in s 6(1). That means Reysson’s arguments largely fall away as they rely on the Court itself determining what the appropriate proximity area should be as a jurisdictional fact. The expert evidence of Dr Clements and Dr Martens as to what they consider an appropriate proximity area is irrelevant.

157. I agree with and adopt the Minister’s submissions in the following three paragraphs.

158. There is nothing impermissible, disproportionate or unreasonable in identifying the proximity area of 100 metres. The purpose of doing so is readily apparent from the planning controls which are imposed by cl 11 of the SEPP. The effect of cl 11 is that development consent must not be granted to development in the proximity area unless the consent authority is satisfied that the proposed development will not “significantly impact on” the integrity of the adjacent coastal wetlands or littoral rainforest or the “quantity and quality of surface and ground water flows” to and from such areas. The identification of these particular areas within the CWLR area is therefore plainly directed to the objective of protecting the integrity of adjacent coastal wetlands.

159. While the proximity area may be a uniform buffer zone, it does not follow that the overall operation of the SEPP involves a disproportionate, “one-size-fits all” approach. The identification of land as coming within the proximity area (and therefore the CWLR area) only has the effect of engaging the relevant planning controls. In the application of those planning controls appropriate consideration will necessarily be given to the particular circumstances of the relevant site and any proposed development.

160. The relevant power being exercised is the power under s 3.29 of the EPA Act to make a planning instrument “for the purpose of environmental planning by the State”. The Coastal Management SEPP plainly serves that purpose. It does so by providing for precisely the kinds of matters authorised in s 3.14. The CM Act does not relevantly modify or add to the purposive component of the power. Rather it has the effect of providing that one of the consequences of a SEPP may be to identify certain land for the purposes of the CM Act. The CM SEPP achieves that result. But in any event, the CM SEPP is also appropriate and adapted to serving the objects of the CM Act.

161. Given that the expert evidence is irrelevant, Reysson’s submission that 100 metres is disproportionate is little more than an assertion. The provision of buffer areas around environmentally sensitive land is well understood in planning law. I note that such a provision is not unprecedented. A 100-metre buffer around identified littoral rainforests was provided in the former SEPP 26.

162. Ground 3 fails.

Area Map not approved by Governor when State Environmental Planning Policy (Coastal Management) 2018 made (Ground 5)

163. For Ground 5 Reysson argued that the Area Map was not approved by the Governor and/or was not before the Governor when he determined to make the CM SEPP. It is common ground that the Governor was not provided with a copy of or a link to the Area Map at the time of making the CM SEPP. The process of briefing the Minister and the Governor in turn is summarised in the affidavits of Ms Camroux at [16]-[17] and Ms Ryan at [19] above. Their affidavits demonstrate that and it was agreed:

1. the briefing note from the Department to the Minister recommended that he:

1. approve the form and content of the proposed CM SEPP and the maps within a specified hyperlink inter alia;

2. form an opinion that the proposed CM SEPP is of State and regional significance under s 3.29 of the EPA Act;

3. recommend to the Governor that he make the proposed CM SEPP by inter alia signing and dating the proposed SEPP and the Minute Paper for the Executive Council;

2. the relevant documents to be forwarded to the Governor were attached to the Department’s briefing note;

3. the Minister signed the briefing note and the Minute Paper for the Executive Council on 7 March 2018; and

4. the Governor signed the Minute Paper for the Executive Council on 14 March 2018, making the CM SEPP.

Applicant’s submissions

164. The power to make the CM SEPP is reposed in the Governor. Section 6(1) of the CM Act confers power to identify the CWLR area in a SEPP. The CM SEPP under cl 6(2) must identify the CWLR area through a map and the Governor must approve the CM SEPP. No map was before the Governor either physically or digitally when the CM SEPP was made. The Minister cannot exercise the Governor’s power by identifying the CWLR area in the Area Map created for the CM SEPP. Clause 8(1)(a) of the CM SEPP purports to sub-delegate to the Minister the power to identify land as being within the CWLR area, a power which the legislature conferred on the Governor.

165. The word “identified” has a high degree of specificity, meaning something capable of recognition. Plans are legislative instruments and obey the same rules of construction as legislation: 4nature Inc v Centennial Springvale Pty Ltd (2017) 224 LGERA 301; [2017] NSWCA 191 at [45] and [106]. As Warringah Shire Council v Punnett & Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480 at [31] (Punnett); Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340; [2006] NSWCA 122 (Pepperwood Ridge) at [40]-[41]; and Shellharbour City Council v Minister for Planning (2012) 187 LGERA 427; [2012] NSWLEC 29 (Shellharbour) at [42] and [71] indicate, such identification must be in a manner with sufficient descriptive capacity to provide the requisite degree of particularity and certainty.

166. The task of identification of the CWLR area by a SEPP must be performed by the Governor but was not. This is because cl 8(1) of the CM SEPP requires that the map be “adopted by this Policy”, a reference to the obligation imposed by s 6(1) of the CM Act that the CM SEPP identify the CWLR area. Clause 8(1) refers to maps “approved by the Minister when the map is adopted”. It is not sufficient for the Minister only to approve the Area Map because it must be approved by the Governor.

167. Section 3.29 of the EPA Act empowers the Governor to “make” SEPPs. If the SEPP itself must identify the CWLR area, that SEPP cannot be “made” by the Governor unless they approve the maps which are “adopted” by the SEPP.

168. The Governor’s approval is a valuable protection because it functions as a brake on the power of the Minister which is particularly important in the context of the CM SEPP which affects private property: see Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27 (Cumerlong) at [18] and [35]. That protection is rendered nugatory if the map, which applies the CM SEPP to particular property, was not before the Governor when the CM SEPP was made. Under cl 10 of the CM SEPP no development is permissible without consent on land in the CWLR area, subject to irrelevant exceptions. All development except rehabilitation inter alia is designated: CM SEPP cl 10(2). No consent for development may be granted unless the wetland is protected and where possible enhanced: CM SEPP cl 10(4).

169. Renowned constitutional law texts such as Anne Twomey, The Constitution of New South Wales (The Federation Press, 2004), Rodney Brazier, Constitutional and Administrative Law (Penguin Books, 1989) and George Williams, Sean Brennan and Andrew Lynch, Blackshield and Williams: Australian Constitutional Law and Theory (The Federation Press, 2018, 7th ed) (Blackshield and Williams) demonstrate that the role of the Governor is more than simply a “rubber stamp”. Twomey states at p 631, citing Mason J in FAI Insurances Ltd v Winneke (1982) 151 CLR 342; [1982] HCA 26 (Winneke) at 365:

… that in practice a Governor may call advice into question, suggest modifications to it and ask that it be reconsidered, even though in the last resort the original advice must be accepted.

170. Blackshield and Williams cites Wilson J in Winneke at 401:

… [the Governor-General] may be described as a rubber stamp, in the sense that his executive acts are based, and necessarily based, on the advice that he is given. But his responsibility is to administer the executive government, and to do so with integrity, discretion and a complete absence of political partiality.

171. Arnold v Hunt (1943) 67 CLR 429 (Arnold); Dainford Ltd v Smith (1985) 155 CLR 342; [1985] HCA 23 (Dainford) and Racecourse Co-operative Sugar Association Ltd v Attorney-General for the State of Queensland (1979) 142 CLR 460; [1979] HCA 50 (Racecourse) demonstrate that while it may be permissible to exercise a power conferred by the legislature to perform a delegated function exercised by making an instrument or order by including in that instrument or order a reference to another document, there is a need for the reference to be certain.

Minister’s submissions

172. There is nothing in the EPA Act or the CM Act that required the Governor to have regard to, approve or do anything in relation to maps. Apart from requiring the prior recommendation of the Minister Administering the CM Act (s 10(2)), the CM Act did not impose any conditions on the process by which the Governor may make a SEPP that identifies a CWLR area. In accordance with well-settled constitutional principles (see Winneke at 373) and s 14 of the Interpretation Act, the Governor followed the advice of the Executive Council and made the SEPP. The Executive Council is not a deliberative body but a formal institution that transforms decisions of ministers and the government into legally effective decisions: Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 179 and Winneke at 396.

173. The CM SEPP made by the Governor does “identify” the CWLR area in the way contemplated by the CM Act. An area is identified as the CWLR area for the purposes of the CM Act where it is “identified by a [SEPP] to be the coastal wetlands and littoral rainforests area for the purposes of [the CM Act]”: CM Act s 6(1). The Governor does not “identify” the area as the CWLR area. The Governor’s role was to make the CM SEPP. The CM SEPP identified the area as the CWLR area for the purposes of the CM Act.

174. There is nothing in the CM Act or EPA Act that constrains how a SEPP might “identify” an area as the CWLR area. There is no requirement that the Governor make or approve any map. The only requirement is that the SEPP which is made by the Governor must “identify” the area as such. The CM SEPP achieves the identification of a CWLR area by adopting the Area Map that had been approved by the Minister and that is effective identification of the CWLR area. The Governor was entitled to, and did, make an instrument that adopted the existing Area Map as the means by which the CWLR area was “identified” by the CM SEPP. Clause 8(3) of the CM SEPP imposed an obligation on the Minister to keep and make available access for maps which had been adopted by the CM SEPP.

175. Section 45B of the Interpretation Act contemplates that an instrument (including an EPI) may adopt or incorporate another publication by reference as was approved in Wright v TIL Services Pty Ltd (1956) SR (NSW) 413 (Walsh J) at 421-2. Contrary to Reysson’s submissions, this does not involve any purported sub-delegation to the Minister of any part of the Governor’s power to make the SEPP. The Governor by making the CM SEPP made the instrument which itself identified the CWLR area, by adoption of the map that had been approved by the Minister.

176. The authorities relied on by Reysson at [170] above (Arnold, Racecourse and Dainford) do not assist its case. There is no equivalent aspect to the power exercised by the Governor to make a SEPP which identifies land for the purposes of the CM Act. It would be unwieldy and impractical for the multiple maps comprising the identification of each of the coastal zones for the purpose of the CM Act to be a necessary part of the SEPP itself, as opposed to being adopted by reference.

177. There is nothing in the constitutional law texts and references to Winneke cited therein relied on by Reysson above at [169]-[170] that indicates that it was a legal requirement in the exercise of the Governor’s power to have the maps specifically put before the Governor. The Governor had every opportunity to ask questions about the instrument he was being asked to approve.

Consideration – Ground 5 is unsuccessful

178. The determination of Ground 5 depends on the statutory construction of the Governor’s role to make a SEPP under s 3.29 of the EPA Act in the context of making the CM SEPP including cl 8 concerning maps which are required by s 6(1) of the CM Act. The Minister’s recommendation of approval of the CM SEPP made to the Governor as provided for in s 3.29(2) of the EPA Act is not challenged by Reysson. Clause 8 states that a map adopted in the CM SEPP is a reference to a map approved by the Minister when the map is adopted. As is clear from the process outlined above in [163], the Minister approved the Area Map and recommended to the Governor that the CM SEPP be approved on 7 March 2018.

179. Reysson relied on the opinions of learned authors as summarised above at [169]-[170] concerning the role of the Governor, emphasising the ability of the Governor to question what is placed before them. Similar findings were made in Winneke by Mason J at 365. That role is particularly important in relation to the maps made as part of the CM SEPP according to Reysson because these are a means by which development controls are placed on land owners whose land is so identified. I agree that cll 10 and 11 of the CM SEPP impose controls on the development of land identified in the Area Map. However, none of the cases relied on by Reysson concerning the Governor’s role and other decision-makers bear any similarity to the statutory provisions which I am considering here.

180. In Cumerlong, as Reysson submitted, part of the reasoning for the High Court’s finding that a particular LEP was not correctly made included reference to the effect on private property rights as a result of the impugned LEP suspending proprietary rights including restrictive covenants. Former s 28 of the EPA Act expressly provided that an LEP which did so had to be made by the Governor. The character of the provisions in the CM SEPP particularly cl 8 is quite different to the express requirement concerning the making of a particular LEP by the Governor. The broader principle of where there is interference with private property rights the Governor can theoretically play a role must be considered in light of the statutory framework under consideration.

181. Reysson alleged that the requirement of the Governor to make the CM SEPP required approval of the Area Map at the same time as the CM SEPP. The approval of the Area Map by the Minister as contemplated by cl 8 was an impermissible delegation of the Governor’s power to make a SEPP. Reysson referred to Racecourse in this regard. There the Governor in Council issued a proclamation under the Sugar Acquisition Act 1915 (Qld) sub-delegating certain powers to the Sugar Board, allowing it to determine matters according to its discretion. The delegation gave a wide discretion to the Board. The High Court struck down the proclamation as invalid. The High Court held that in delegating to the Board the power to determine the value or price of the acquired sugar by reference to a standard which was not certain or objective but which required the Board to exercise a wide discretion, the Governor in Council had not “determined and declared” the value of the acquired sugar or “fixed” its price as required by the Sugar Acquisition Act. The delegation was unlawful as the power conferred by the Act could not be exercised by reference to another document not part of the order. The finding reflected the precise terms of how prices were fixed under the Sugar Acquisition Act. It is difficult to see how that finding has any relevance to the statutory provisions before me.

182. In Arnold the High Court considered reg 23 of the National Security (Prices) Regulations (Cth) which empowered the Commonwealth Prices Commissioner by order published in the Gazette to fix and declare the maximum price of any declared goods. The Commissioner, by order, purported to declare the price of “spiritous liquors” to be those as set out in the amended retail price list issued by the Victorian Associated Brewers. The High Court held that the price must be fixed and declared in the body of the order itself or in a schedule to the order and cannot be fixed by some extraneous document which is not part and parcel of the order. This much flowed from the clear terms of the power itself, being one to make and publish an order that itself fixed and declared the maximum price. Once again the High Court’s finding necessarily reflected the precise statutory scheme before it. As the Minister submitted, the relevance of that case to the statutory scheme here is unclear.

183. The issue in Dainford was whether a by-law had been validly made pursuant to the Building Units and Group Titles Act 1980 (Qld) (the BU Act). A body corporate had the power to make by-laws conferring exclusive use of common property on lot owners. The by-law in issue conferred on each lot owner a right to exclusive use of a car space/s which had yet to be allocated. Gibbs CJ stated at 349 that to determine the validity of an exercise of statutory power, the court must consider “whether the power has been exercised by the person upon whom it has been conferred and whether it has been exercised in the manner and within the limits laid down by the statute conferring the power.” Gibbs CJ and Wilson and Dawson JJ found that the by-law had been validly made because the BU Act did not require that the part of the common property the subject of the by-law had to be identified by the by-law itself. Identification could be made by reference to another document or to extrinsic facts produced by another person. Reysson relied on Brennan J at 362 holding that an instrument which refers to a document produced by another person cannot be relied on where that other document is yet to be produced. The relevance of this case to the statutory scheme before me is unclear, particularly as the Area Map existed when the CM SEPP was made by the Governor which Dainford suggests is acceptable.

184. All these cases reflect the particular statutory regime before the High Court. Depending on that statutory context, power required to be exercised by a particular decision-maker cannot be delegated. As the Minister submitted, no delegation of the Governor’s powers as Reysson contended occurs in the approach in the CM SEPP of the Minister approving an Area Map under cl 8 and the subsequent making of the CM SEPP which includes that Area Map by the Governor.

178. The Minister referred to s 45B(c) of the Interpretation Act and Wright v TIL Services Pty Ltd and these support the submission made that an instrument can adopt another publication. Wright v TIL Services Pty Ltd was referred to with approval by Brennan J in Dainford at 362.

179. Here the instrument operates by reference to an identified map that has already been approved by the Minister as provided for expressly in cl 8(1) of the CM SEPP. The process outlined in the affidavits of Ms Camroux and Mr Ryan accords with cl 8 of the CM SEPP as required by cl 6(1) of the CM Act.

180. Reysson also focused on the meaning of “identify” in s 6(1) stating “... land identified by a State environmental planning policy to be the coastal wetlands and littoral rainforests for the purposes of this Act ...”, relying on Punnett and Pepperwood Ridge. These cases considered whether provisions in an LEP identified land by the descriptors (or by like description) in Sch 1 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors Housing SEPP) or its predecessor. That particular statutory context required in those cases a close consideration of whether words in the relevant LEPs had sufficient descriptive capacity and particularity to satisfy the application of the precise terms in Sch 1. If Sch 1 applied, land was exempt from the Seniors Housing SEPP. It is unnecessary to set out the circumstances of these cases as they are quite unlike the scheme in s 6(1) of the CM Act as reflected in cl 6(2) of the CM SEPP.

181. In Shellharbour one of the issues for determination was whether land marked by a map as an “area of high conservation value” within the relevant LEP was “land identified in an environmental planning instrument as being of … high biodiversity significance” and therefore an environmentally sensitive area of state significance for the purposes of the former State Environmental Planning Policy (Major Projects) 2005 (Major Projects SEPP). Craig J held that the phrase “land identified … as being of … high biodiversity significance” was clear and must be applied according to its plain terms: at [35]. The “identification” of the land must be at a level of particularity and certainty that is made apparent by the provisions of the planning instrument itself (at [42]) which ought to be readily ascertainable without recourse to evaluative judgments (at [47]). The purpose of the Major Projects SEPP (a gateway instrument to the operation of former Pt 3A of the EPA Act) was clarity and certainty in identification of land that was engaged by the definition of “environmentally sensitive area of State significance” (at [47]).

182. While addressing different statutory contexts, the focus on the word “identify” in these cases which Reysson relied on as supportive of its construction case can be accepted but is a largely neutral factor. There is no suggestion in this part of Reysson’s case that the Area Map approved under cl 8 by the Minister did not identify “coastal wetlands” as specified by s 6(1) of the CM Act, putting to one side the jurisdictional fact argument.

183. The construction of the Minister is preferred for the reasons set out above at [172]-[174] as that correctly reflects the statutory scheme in issue. There is no equivalent aspect to the power exercised by the Governor to make a SEPP which identifies land for the purposes of the CM Act. Further, that construction is supported by cl 8(1)(b) of the CM SEPP which provides that maps may be amended and replaced from time to time, a function which is also carried out by the Minister through the making of an amended SEPP by the Governor.

184. Ground 5 fails.

Conclusion

192. Reyssons’ amended summons should be dismissed as it has been unsuccessful on all grounds of review. Costs in Class 4 proceedings generally follow the event in the absence of any disentitling conduct by the successful party. The State of New South Wales has played no role in the proceedings and would not expect to have any costs order made in relation to it. Reysson will be liable for the Minister’s costs. I will make a costs order in the Minister’s favour in 28 days unless a notice of motion seeking alternative orders is filed.

Order

193. The Court orders as follows:

1. The amended summons dated 14 August 2019 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceedings unless a notice of motion seeking a different costs order is filed within 28 days.

3. The exhibits are returned.

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Decision last updated: 23 December 2019