Save Sydney's Koalas (South West) Inc v Lendlease Communities (Figtree Hill) Pty Limited (No 2)

Case •

[2021] NSWLEC 102

•

24 September 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Save Sydney's Koalas (South West) Inc v Lendlease Communities (Figtree Hill) Pty Limited (No 2) [2021] NSWLEC 102
Hearing dates: 26, 27 and 28 April 2021
Date of orders: 24 September 2021
Decision date: 24 September 2021
Jurisdiction:Class 4
Before: Duggan J
Decision:

See paragraphs 152 to 154

Catchwords:

ENVIRONMENT AND PLANNING — development application — validity of consent — cl 6.3 of Campbelltown Local Environment Plan 2015 — whether development control plan provided for a staging plan — not essential or necessary that staging provides for multiple stages and sequencing — discretion not lead to invalidity of consent

ENVIRONMENT AND PLANNING — extension of time for commencing proceedings — whether extension should be granted under r 59.10 of Uniform Civil Procedure Rules 2005 — adequate explanation for delay — particular interest in challenging decision — potential prejudice to persons and public interest — leave not granted for extension

ENVIRONMENT AND PLANNING — development application — validity of consent — application of ss 8.3 and 8.4 of Biodiversity Conservation Act 2016 — whether biodiversity certification operated such that cl 10 of State Environmental Planning Policy (Koala Habitat Protection) 2020 had no operative effect on consent — effect of Biodiversity Certification – cl 10 State Environmental Planning Policy (Koala Habitat Protection) 2020 not a mandatory consideration — leave to further amend summons refused — summons dismissed

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW)

Biodiversity Conservation (Saving and Transitional) Regulation 2017 (NSW)

Environmental Planning and Assessment Act 1979 (NSW)

Environmental Planning and Assessment Regulation 2000 (NSW)

Interpretation Act 1987 (NSW)

Threatened Species Conservation Act 1995 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Baini v The Queen (2012) 246 CLR 469

Bob Brown Foundation Inc v Commonwealth of Australia (2021) 386 ALR 1

Brown v Forestry Tasmania (No 4) (2006) 157 FCR 1

Clegg v Western Australia (No 2) (2017) 265 A Crim R 201

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Elliott v Minister Administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082

Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135

Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128

Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114

Homeworld Ballina Pty Ltd v Ballina Shire Council (2010) 172 LGERA 211

Markell v Wollaston (1906) 4 CLR 141

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Pepsi Seven-up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372

Stocks & Parkes Investments Pty Ltd v Minister [1971] 1 NSWLR 932

The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Whitton v Falkiner (1915) 20 CLR 118

XYZ v The Commonwealth (2006) 227 CLR 532

Texts Cited:

Macquarie Dictionary, 8th edition (2020)

Oxford English Dictionary, 2nd edition (online)

Category:Principal judgment
Parties: Save Sydney's Koalas (South West) Inc (Applicant)
Lendlease Communities (Figtree Hill) Pty Limited (First Respondent)
Campbelltown City Council Local Planning Panel (Second Respondent)
Campbelltown City Council (Third Respondent)
The Secretary, NSW Department of Planning, Industry and Environment (Fourth Respondent)
Mt Gilead Pty Limited (Fifth Respondent)
Lendlease Communities (Figtree Hill No. 3) Pty Limited (Sixth Respondent)
Representation:

Counsel:
J Walker and J Holt (Applicant)
N Williams SC and A Shearer (First and Sixth Respondents)
Submitting Appearance (Second Respondent)
J Lazarus SC with T Phillips (Third Respondent)
D Hume (Fourth Respondent)
Submitting Appearance (Fifth Respondent)

Solicitors:
Connor & Co Lawyers (Applicant)
Addisons (First, Fifth and Sixth Respondents)
HWL Ebsworth Lawyers (Second and Third Respondents)
Department of Planning, Industry and Environment (Fourth Respondent)
File Number(s): 2021/16190
Publication restriction: No

Judgment

Nature of proceedings

  1. By its Second Further Amended Summons filed on 26 April 2021 Save Sydney’s Koalas (South West) Inc (the Applicant) seeks declarations that:

  1. Development Consent 2984/2020/DA-CW for tree removal, dewatering of dams and earthworks at Mt Gilead (the Consent) is invalid; and

  2. The Campbelltown Comprehensive Koala Plan of Management (CCKPOM) purportedly approved by the Fourth Respondent on 20 July 2020 is not a valid approved Koala Plan of Management (KPOM) for the purposes of cl 10 of the State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020).

  1. In order for the Applicant to challenge the validity of the CCKPOM it accepted that it was necessary that it obtain an order pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (UCPR) extending the time for commencement of the proceedings challenging the CCKPOM to 19 January 2021 (being the date on which the proceedings were commenced).

  2. These proceedings fundamentally relate to a challenge to the validity of the grant of the Consent.

  3. The Second and Fifth Respondents have entered an appearance in the proceedings in which they submit to the making of all orders sought and the giving or entry of judgment in respect of all claims made, save as to costs.

Background facts

  1. These proceedings concern the grant of development consent relating to land in the Campbelltown local government area comprising Lots 1 to 5 DP 1240836 and Lot 61 DP 752042, situated at Appin Road, Mt Gilead (the Land). At the material dates, the First Respondent was the registered proprietor of Lots 1-2 DP 1240836, and the Sixth Respondent, Lendlease Communities (Figtree Hill No. 3) Pty Limited was the registered proprietor of Lot 61 DP 752042 (the First and Sixth Respondents are collectively referred to as Lendlease). The Fifth Respondent was the registered proprietor of Lots 3-5 DP 1240836.

  2. In September 2020, the First Respondent lodged development application 2984/2020/DA-CW (the DA) with the Third Respondent, Campbelltown City Council (the Council) for tree removal, dewatering of dams and earthworks in relation to the Land.

  3. On 16 December 2020, the Campbelltown City Council Local Planning Panel, the Second Respondent (the Panel), considered the DA and determined to grant the consent to the DA subject to conditions on behalf of the Council. The Consent became effective from 23 December 2020.

  4. On 8 August 2018, the Mt Gilead Voluntary Planning Agreement was entered into by the Council relating to the Land. On 17 May 2019, Lendlease and others entered into the Mt Gilead Voluntary Planning Agreement with the NSW Minister for Planning and Public Places (collectively referred to as the VPAs).

  5. On 28 June 2019, a Biodiversity Certification Agreement relating to the Land was entered into between the Minister administering the Threatened Species Conservation Act 1995 (NSW), Lendlease, the Fifth Respondent and the Council.

  6. On that date, the Chief Executive Officer of Environment and Heritage, as delegate of the Federal Minister for Energy and Environment, made an order conferring biodiversity certification on the Land under s 126H of the Biodiversity Conservation Act 2016 (NSW) (the Biodiversity Certification).

  7. On 5 July 2019, the Biodiversity Certification was published in the NSW Government Gazette. By cl 37 of the Biodiversity Conservation (Saving and Transitional) Regulation 2017 (NSW), the Biodiversity Certification is taken to be conferred on the Land under Part 8 of the Biodiversity Conservation Act 2016 (NSW) (BC Act).

Issues for determination

  1. The grounds upon which the Applicant contended that the declarations should be made were set out in its Second Further Amended Summons. There were three grounds particularised as generally relating to:

  1. Ground 1, whether the Council’s Campbelltown (Sustainable City) Development Control Plan provided for a staging plan as required by cl 6.3 of Campbelltown Local Environmental Plan (2015) (LEP 2015). If not, was the grant of the Consent unlawful and the Consent invalid?

  2. Ground 2 sought to have declared invalid the Koala Plan of Management in force as at the date of the grant of the Consent. If the Koala Plan of Management was invalid then, by operation of cl 10 of the Koala SEPP 2020 there was no power to grant the Consent and the Consent is invalid.

  3. Ground 3 is, in effect, an alternative to Ground 2. If the CCKPOM is not invalid, then there was an obligation by operation of cl 10(2) of Koala SEPP 2020 for the consent authority to be satisfied that the DA was consistent with the provisions of the CCKPOM. The Consent authority was not so satisfied and, therefore, the Consent was beyond power and was invalid.

  1. There are a number of matters that arise in connection with Grounds 2 and 3 relating to whether the CCKPOM is a relevant consideration in the determination of the Consent and whether the breaches pleaded would lead to invalidity and discretion. Further, the Applicant is precluded from challenging the validity of the CCKPOM unless it obtains an extension of time to bring these proceedings. The resolution of these factors is fundamental to the Applicant’s case and will be required to be determined before the substantive matters raised by the Applicant.

Ground 1 – Absence of a staging plan in the DCP

  1. Ground 1 relates to the assertion that the provisions of cl 6.3(2) of LEP 2015 requires a development control plan to be in force and which plan must make provision for the matters specified in cl 6.3(3). Such requirements are as a condition precedent to the grant of any development consent. The determination of this issue turns on whether the provisions of the development control plan that relates to the Land is a development control plan that makes provision for a staging plan for the timely and efficient release of the Land within the meaning of cl 6.3 of LEP 2015. The Applicant particularised this ground in the Second Further Amended Summons as:

11   Subclause 6.3(2) of LEP 2015 provides that consent must not be granted for land in an urban release area unless a development control plan that provides for the matters specified in subclause 6.3(3) has been prepared for the land.

12   One of the matters specified in subclause 6.3(3) is “(a) a staging plan for the timely and efficient release of urban land”.

13   The only development control plan which has been prepared for the Land is the Campbelltown (Sustainable City) Development Control Plan 2015 (the SCDCP). The SCDP does not contain a staging plan within the meaning of subclause 6.3(3)(a) of LEP 2015.

Particulars:

(a)   Figure 1A which is titled “staging plan” is not a staging plan in substance because it does not specify the order in which works are to be carried out within Stage 1 or specify how the progressive provision of hard and soft infrastructure is to keep pace with the progressive release of urban land within Stage 1;

(b)   Figure 1A is not a staging plan which provides “for the timely and efficient release of urban land” because it does not specify the timing of land release within Stage 1;

(c)   Figure 1A has no practical effect, because cl 1.2(a) provides that development may be undertaken in a single stage as shown in Figure 1A, or in any number of substages;

(d)   Read together, Figure 1A and cl 1.2(a) provide no guidance as on the staging of works or order of land releases within the Mt Gilead urban release area.

14   The Second Respondent purported to grant the Consent without a DCP having been prepared which addressed cl 6.3(3)(a) of LEP 2015, breach of cl 6.3(2).

15   As a result of the matters set out in [9] - [14] above, the Consent is invalid.

  1. The Council and Lendlease both contend that Ground 1 should be dismissed. However, if the underlying assertions in Ground 1 are made out the consequence would not be invalidity, or in the alternative, in the exercise of the Court’s discretion the Court would decline to make the declaration sought.

The LEP and DCP

  1. The provisions LEP 2015 apply to the Land. Part 6 of LEP 2015 made provision with respect to urban release areas, which term was defined in the Dictionary to LEP 2015 to mean:

Urban Release Area means the area of land identified as “Urban Release Area” on the Urban Release Area Map.

Urban Release Area Map means the Campbelltown Local Environmental Plan 2015 Urban Release Area Map.

  1. At all relevant times the Land was identified on the Urban Release Area Map as an urban release area known as: Mt Gilead Urban Release Area.

  2. Part 6 of LEP 2015 made the following provisions with respect to urban release areas:

Part 6   Urban Release Areas

6.1   Arrangements for designated State public infrastructure

(1)   The objective of this clause is to require satisfactory arrangements to be made for the provision of designated State public infrastructure before the subdivision of land in an urban release area to satisfy needs that arise from development on the land, but only if the land is developed intensively for urban purposes.

(2)   Development consent must not be granted for the subdivision of land in an urban release area if the subdivision would create a lot smaller than the minimum lot size permitted on the land immediately before the land became, or became part of, an urban release area, unless the Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that land.

(3)   Subclause (2) does not apply to—

…

6.2 Public utility infrastructure

(1)   Development consent must not be granted for development on land in an urban release area unless the Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required.

(2)   This clause does not apply to development for the purpose of providing, extending, augmenting, maintaining or repairing any public utility infrastructure.

6.3   Development control plan

(1)   The objective of this clause is to ensure that development on land in an urban release area occurs in a logical and cost-effective manner, in accordance with a staging plan and only after a development control plan that includes specific controls has been prepared for the land.

(2)   Development consent must not be granted for development on land in an urban release area unless a development control plan that provides for the matters specified in subclause (3) has been prepared for the land.

(3)   The development control plan must provide for all of the following—

(a)   a staging plan for the timely and efficient release of urban land, making provision for necessary infrastructure and sequencing,

(b)   an overall transport movement hierarchy showing the major circulation routes and connections to achieve a simple and safe movement system for private vehicles, public transport, pedestrians and cyclists,

(c)   an overall landscaping strategy for the protection and enhancement of riparian areas and remnant vegetation, including visually prominent locations, and detailed landscaping requirements for both the public and private domain,

(d)   a network of active and passive recreation areas,

(e)   stormwater and water quality management controls,

(f)   amelioration of natural and environmental hazards, including bush fire, flooding and site contamination and, in relation to natural hazards, the safe occupation of, and the evacuation from, any land so affected,

(g)   detailed urban design controls for significant development sites,

(h)   measures to encourage higher density living around transport, open space and service nodes,

(i)   measures to accommodate and control appropriate neighbourhood commercial and retail uses,

(j)   suitably located public facilities and services, including provision for appropriate traffic management facilities and parking.

(4)   This clause does not apply to land in an urban release area if all or any part of the land is in a special contributions area (as defined by section 93C of the Act).

6.4   Relationship between Part and remainder of Plan

A provision of this Part prevails over any other provision of this Plan to the extent of any inconsistency.

  1. The Land was not land to which Part 6.3(4) of LEP 2015 applied.

  2. The Council had in force a development control plan that applied to the Land, known as Campbelltown (Sustainable City) Development Control Plan. On 8 September 2017, Amendment No 3 to the Campbelltown (Sustainable City) Development Control Plan commenced, inserting provisions entitled: Volume 2 Site Specific Development Control Plans Part: 7 Mt Gilead. The inserted provisions related exclusively and specifically to the Land.

  3. On 4 May 2020, that part of the Campbelltown (Sustainable City) Development Control Plan comprising Volume 2 Site Specific Development Control Plans Part: 7 Mt Gilead was further amended by the operation of Amendment No 8. That amendment inserted 1.2 Campbelltown LEP Compliance Table, and Figure 1A: Mt Gilead Staging Plan, into Volume 2 Part 7 (the DCP). These provisions provided, in so far as it expressly referred to cl 6.3 of LEP 2015:

  1. At the time the Consent was granted, the DCP was the only development control plan that applied to the Land.

Evidence

  1. Evidence was adduced on this ground from expert town planning consultants: Mr Kerr for the Applicant and Ms Brown for Lendlease. The town planning experts prepared written evidence in chief and a joint town planning report. The expert witnesses were cross-examined on their evidence.

  2. By way of brief summary, the expert town planners were in agreement that a staging plan:

  1. Will not necessarily require a number of sequential stages;

  2. Will not need to be in an illustrated form but may comprise words or words and illustrations or an illustration alone; and

  3. Will vary depending upon the complexity of a particular development proposal.

  1. To the extent that there was disagreement as to the meaning of the term “staging plan” the dispute related to what would “ordinarily” be provided for in a staging plan. However, it was agreed that there was not an essential matter to be provided for, rather preferences as to what a staging plan should include.

Applicant’s submissions

  1. The Applicant contended that as the Land was designated an urban release area by LEP 2015, the provisions of cl 6.3 were required to be met as a condition precedent to the grant of development consent to any development application relating to the Land. Absent the provision of a development control plan applying to the Land that met the requirements of cl 6.3 of LEP 2015 being in existence at the date of the grant of any development consent, a development application relating to the Land was incapable of being approved.

  2. In this case, the DCP did not meet the requirements of cl 6.3 as it did not contain a staging plan that met the requirements of cl 6.3. A staging plan, not being a defined term, is to be understood by reference to its clear meaning on the face of the words used, that is, it means a plan that governs the staging of works, namely the order in which the different types of works will be undertaken on the different parts of the relevant land. The DCP did not make such provision in a staging plan as the staging plan in Figure 1A only provided for a single stage.

  3. The provisions of cl 6.3 give primacy to the requirement for a staging plan as it is specifically mentioned in the stated objective of the clause: cl 6.3(2). Further, a staging plan is one of the expressly prescribed requirements of the DCP to which the objective refers: cl 6.3(3)(a).

  1. The staging plan as illustrated in Figure 1A and as referenced in cl 1.2 of the DCP is not a staging plan for the purposes of cl 6.3 of LEP 2015 as:

  1. It makes no provision for the order in which works are to be carried out;

  2. By identifying the whole area and the whole of works as a single stage the DCP leaves to the developer to decide the sequence of works and urban land release. The lack of precision as to staging is exacerbated by the use of the word may in cl 1.2, again leaving it to the developer and not the DCP to designate the order of works; and

  3. As it is not physically possible for all necessary works on the 216ha that comprise the Land to be carried out simultaneously there is no practical difference between nominating a single stage and not identifying any stages at all.

  1. The Court would be satisfied that the DCP does not contain a staging plan as required by cl 6.3. Absent such a staging plan the purported approval was beyond power and, therefore, invalid.

  2. It was accepted that the provisions of LEP 2015 are to be construed in order to ascertain whether it was intended that a breach of cl 6.3 would have the consequence of the invalidity of any development consent granted in the absence of compliance with the requirements of the provision. In this case, having regard to the provisions of LEP 2015 as a whole, together with the objectives of the relevant clause and the textual and contextual indicia, the Court would find that the lack of a relevant staging plan was intended to lead to invalidity as indicated by:

  1. Clause 6.3(2) in express terms indicates that compliance with cl 6.3 is a condition precedent to the grant of consent, thereby strongly indicating an intention to invalidate a consent granted in breach of the clause;

  2. The language of cl 6.3(3) is that there is a requirement for compliance with all of the listed provisions that are nominated in that clause (rather than substantial compliance) as the language used in the chapeau to cl 6.3(3) is that “all of the following” must be addressed in the DCP, making it plain that there is no capacity for substantial compliance; and

  3. The reference in the objectives to the clause to a staging plan indicates in any event that it is the staging of the works that is to be given pre-eminence in testing the conformity of the DCP with cl 6.3 rather than any of the other requirements in cl 6.3(3).

  1. The express objective of cl 6.3 is to ensure that development in an urban release area “occurs in a logical and cost-effective manner” and “in accordance with a staging plan”. The incorporation of a staging plan into the DCP is conducive to this object because it ensures that a plan is in place prior to the approval of the first development application so as to govern the form of all future development applications. In this way, each individual development application can be seen as part of an overall pattern of “logical” and “cost-effective” development of the Land as a whole. By contrast, a staging plan which is not incorporated into a development control plan may be adhered to for the purposes of one development application and later disregarded.

  2. In practical terms, whether there is a staging plan contained in a development control plan at the time that a consent is granted is also likely to have a material effect on the way in which the whole urban release area is developed. The presence of a staging plan contained in the DCP will ensure that the future sequencing of the urban release area will be guided by that DCP, achieving the objective of orderly development.

  3. The Applicant was not contending that the DCP was invalid or that the staging plan in the DCP was not a staging plan. Rather it contended that, to the extent that the DCP was relied upon as meeting the requirements of cl 6.3 of LEP 2015, the DCP and the staging plan were not sufficient for that purpose. Therefore, it could not be said that the requirements of cl 6.3 of LEP 2015 had been met and the grant of the Consent was therefore invalid.

Council’s submissions

  1. The Council submitted that the DCP contained a staging plan consistent with the requirements of cl 6.3 of LEP 2015 and that the ground should be dismissed. In the alternative, if the DCP did not meet the requirements of cl 6.3 of LEP 2015, the Court would find that non-compliance with such a legislative provision was not intended to lead to invalidity of a development consent and/or would decline the relief sought in the exercise of its discretion.

  2. The Applicant’s case is based upon there being a requirement that the DCP contains a staging plan and that there are essential elements of such a plan that must be construed strictly in order that the staging plan can be said to be in conformity with the requirements of cl 6.3 of LEP 2015. The construction of the provisions of cl 6.3 as proposed by the Applicant is not open on a proper construction of LEP 2015. In considering the text, context and purpose relating to a proper interpretation of the requirements of cl 6.3 the following are to be borne in mind:

  1. The function of a development control plan in the statutory scheme is identified in ss 3.42 to 3.45 of the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act). These provisions indicate that a development control plan is to: “provide guidance”; “give effect to the aims of an LEP”; and “facilitate development permissible under the LEP”. These provisions do not indicate a strict construction of the provisions of a development control plan but a construction that recognises the object of a development control plan and how such plans are intended to operate in the broad regime of planning controls as provided for in the EP&A Act; and

  2. Whilst a consent authority is required to take the provisions of any relevant development control plan into account in the determination of a development application the provisions of such a development control plan does not bind a consent authority to determine the application in any particular way: see s 4.15(1)(a)(iii) of the EP&A Act. Section 4.15(3A)(b) of the EP&A Act makes it apparent that where the specific provisions of a development control plan are not met, the consent authority is “to be flexible in those provisions and allow reasonable alternative solutions that achieve the objects of those standards”. Clause 6.3 should be construed in a manner that has regard to the facultative role and flexible planning approach to such plans in the overall planning scheme.

  1. It is incorrect to construe cl 6.3 in isolation of the whole of the relevant part of LEP 2015. Part 6 of LEP 2015 should be considered as a whole including cl 6.1 which deals with state public infrastructure and cl 6.2 that deals with public utility infrastructure. What cl 6.3 then makes provision for is to be determined in that contextual relationship. It is the totality of Part 6 of LEP 2015 which identifies the purpose of the requirement for a development control plan and what it is intended would be provided for in such a development control plan.

  2. Further, the express language used in cl 6.3 does not require that a staging plan be “contained” in a development control plan but that a development control plan must “provide for” a staging plan. The requirement that something is provided for is quite different than a requirement that it include that stated matter: Stocks & Parkes Investments Pty Ltd v Minister [1971] 1 NSWLR 932; Brown v Forestry Tasmania (No 4) (2006) 157 FCR 1; Bob Brown Foundation Inc v Commonwealth of Australia (2021) 386 ALR 1; Elliott v Minister Administering Fisheries Management Act1994 (2018) 97 NSWLR 1082.

  3. Clause 6.3 uses the phrase “provide for” in the context of the matters specified in cl 6.3(3). From the use of language sush as “overall… strategy” and “overall… hierarchy”, an examination of such paragraphs indicates an intention that the relevant development control plan sets out a high-level framework for development rather that a prescriptive control.

  4. The language of cl 6.3(3)(a) of LEP 2015 is ambulatory in its meaning and operation and indicates that a staging plan is not a plan fixed at a single point in time. With this ambulatory operation whether a particular plan satisfies this provision will depend upon the facts, matters and circumstances of the relevant urban land in issue. The reference to the staging plan must be read in the context of the whole of the provision in cl 6.3(3) and requires a consideration of what may be needed “for” the timely and efficient release of the land in question or what would be required to “make provision for” necessary infrastructure and sequencing.

  5. In order to ascertain whether the DCP provides for a staging plan it is appropriate that the whole of the relevant part of the DCP dealing with the Land (namely Part 7) be considered. Contrary to what is contended by the Applicant it is inappropriate to focus solely on Figure 1A or clause 1.2. The whole of Part 7 identifies the nature and manner of the development to be carried out and provides detail as to the provision of infrastructure: cl 3.2, and the size and width of residential lots: cl 3.4. Viewed as a whole Part 7 provides for a staging plan for the Land within the meaning of cl 6.3 of LEP 2015 in that it established a framework which facilitated or enabled the staging of development within the urban release area in a manner that advanced the objectives of that clause.

Lendlease’s submissions

  1. In accordance with general principles of construction, the phrase “provides for” in cl 6.3(2) should not be substituted with the word “contains”: Baini v The Queen (2012) 246 CLR 469 at 476 [14]. The natural and ordinary meaning of that phrase has been described in this Court, in the context of a requirement to “publicly exhibit or to provide for access to” a document, as “consonant” with “the purpose of the legislative provision” being “to inform the reader”, who is also likely to be an “interested reader”: Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 at [97], [99]-[100]; Homeworld Ballina Pty Ltd v Ballina Shire Council (2010) 172 LGERA 211 at 218 [25]. The focus, therefore, is not on form. Timely and efficient release of urban land, including provision for necessary infrastructure and sequencing, need not be contained in the plan. It is sufficient if it is provided for in the plan. The staging plan in the DCP makes that provision.

  2. Also, in accordance with ordinary principles, the term “staging plan” must be construed as a composite phrase, not reduced to the dictionary meanings of the two words that comprise it: XYZ v The Commonwealth (2006) 227 CLR 532 at 544 [19], 568 [102], 592-593 [176]. That composite phrase is not defined in LEP 2015 and it has no established legal meaning. The absence of a definition of such a composite phrase in dictionaries such as the Oxford English Dictionary, 2nd edition (online) and the Macquarie Dictionary, 8th edition (2020) suggests that it also has no ordinary meaning in society generally. Hence, so long as the term “has a technical meaning in relation to” town planning, “it is to be given that meaning” in cl 6.3(2)(a) of LEP 2015 “unless the contrary intention appears”: Clegg v Western Australia (No 2) (2017) 265 A Crim R 201 at 211 [55].

  3. Identifying that “non-legal technical meaning is a question of fact”: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. There is abundant and longstanding authority that evidence is relevant and admissible to establish the existence and content of that meaning: Markell v Wollaston (1906) 4 CLR 141 at 147, 150; Whitton v Falkiner (1915) 20 CLR 118 at 127, 133, 135.

  4. Ordinarily, expert evidence of a technical meaning is useful “to explain the context in which the legislation speaks”: Pepsi Seven-up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 at 298.

  5. Once the term “staging plan” has been construed, the “question whether a particular set of facts comes within the description” is also “one of fact”: TheAustralian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 at 137.

  6. Even if the criterion in cl 6.3(2)(a) is objective, rather than based on the Council’s opinion or satisfaction, the Court must give due weight to the Council’s decision in determining the question for itself: Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at [45]-[47].

  7. Given the burden of proof in these proceedings, the Applicant must demonstrate on the balance of probabilities that the DCP did not “provide for” a “staging plan” according to the established technical meaning of that term. More specifically, the Applicant must demonstrate that the contents lacked some attribute that has been proven to be necessary or essential to any “staging plan”. The evidence is to the contrary, and noncompliance with cl 6.3(2)(a) is not shown.

  8. A consideration of the Applicant’s case as identified in [13] of the Second Further Amended Summons and as particularised in particulars (a), (b) and (c) indicates a focus simply on Figure 1A and what it does or does not provide for. Such focus is the wrong approach to the issue, which must relate to the DCP as a whole. Those particulars are incapable of sustaining the ground. Particular (d) goes slightly further by referencing Figure 1A and cl 1.2(a). It depends on the proposition that a staging plan must provide guidance as to “the staging of works or order of land releases”. That is not reflected in the language of cl 6.3 and it is contrary to the expert evidence (including that of the Applicant’s own expert) as to the flexibility of the concept of a staging plan. This particular again does not look to the DCP as a whole.

  9. A proper construction of the requirements of cls 6.2 and 6.3 of the DCP requires:

  1. A construction viewed through the prism of the overarching statutory regime concerning the role of development control plans. In this regard, the “principal purpose” of a development control plan is to provide “guidance” as to certain matters to the persons proposing to carry out relevant development and to the consent authority for any such development: s 3.42 of the EP&A Act. Such provisions of a development control plan are expressly stated not to be statutory requirements: s 3.42 of the EP&A Act, and are to be considered flexibly: s 4.15(3A) of the EP&A Act. There are no statutory or regulatory requirements relevant for present purposes that prescribe the form or detail required in the expression of the content of the provisions of a development control plan;

  2. Notice must be taken of the language of cl 6.3(3) of LEP 2015 including:

  1. The chapeau of the clause refers to the DCP “provid[ing] for” a “staging plan…” which for the reasons in [42] above, this phrase should not be substituted with the word “contains”;

  2. The text of cl 6.3(3)(a) reinforces that the staging plan need not be “contained” in the DCP as the language of sub-paragraph (a) requires that the DCP “provide[s] for” a staging plan which “mak[es] provision for necessary infrastructure and sequencing”. There is, therefore, a doubling of the “provid[ing] for” concept. On the second occasion this concept is employed, it is again not to be substituted with words such as “contains” or “details”; and what the staging plan makes provision for is “necessary infrastructure and sequencing”. Where infrastructure or sequencing is not considered necessary for the particular urban release, it follows that the staging plan need not make provision for it. It would obviously be absurd if it were contemplated that the “provid[ed] for” staging plan was required to make provision for unnecessary infrastructure or unnecessary sequencing. That would not serve any planning purpose and, indeed, would be antithetical to any proper planning purpose and antithetical to the “timely and efficient release of urban land”;

  1. On the text of the clause it must follow that where infrastructure or sequencing is not considered necessary for the particular urban release, the staging plan need not make provision for it. This is something over which minds might differ. But importantly, it is quintessentially a merits issue for the maker of the DCP. That merits issue is not something open to challenge in these proceedings. In this regard, there is no challenge to the making of the DCP (or, in particular, Amendment No 8 to the DCP). Even ignoring the limits of judicial review proceedings there is no allegation that there was some infrastructure or sequencing that was necessary which was not provided for;

  2. Clause 6.3 of LEP 2015 does not operate in isolation. Clause 6.2(1) provides that “[d]evelopment consent must not be granted for development on land in an urban release area unless the Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required”. There is no allegation that cl 6.2 was not complied with and there can be no suggestion that it will not be complied with in respect of future development applications. It follows that it must be accepted that the consent authority was satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. This has a correlation with the subject matter of cl 6.3(3)(a);

  3. The expert evidence supports the view that there is no fixed content attaching to the concept of a “staging plan” in a town planning context, and that there can be great flexibility as to the content of such a plan. Although some aspects are disputed, much of what Ms Clare Brown, an independent expert town planner, says in this regard is not controversial and agreed to by Mr Stephen Kerr (the Applicant’s expert). The evidence of Ms Brown cogently supports the following findings of fact about the technical meaning of the term “staging plan”; and

  4. The Compliance Table at cl 1.2 of the DCP stipulates that:

Development may be undertaken in a single stage (as shown in Figure 1A, staging plan) or in any number of substages provided that development reflects the progressive delivery of road, utility and local infrastructure over the land. Development may be undertaken pursuant to several development applications with an explanation of how this is compatible with the delivery of infrastructure.

Figure 1A shows a single stage. There is nothing wrong with this approach. There can be no doubt that across the contents of Part 7 of the DCP it “make[s] provision for necessary infrastructure”. If the development is undertaken in a “single stage”, necessary infrastructure will all be provided as part of that one stage. There is nothing further that need be articulated in that circumstance, there is no sequencing that is “necessary”. If the development is undertaken in a “number of substages”, then it is required that necessary infrastructure (specifically, road, utility and local infrastructure over the Land) must be progressively provided. So, for example, the DCP makes clear in that circumstance that necessary infrastructure (specifically, road, utility and local infrastructure over the Land) cannot simply be left to last or later in the development cycle. Rather, it is to be progressively provided with the substages. The detail of that is appropriately left to subsequent development applications. But the DCP has provided appropriate “guidance” for the proponent and consent authority as to how the matter ought be approached and considered.

  1. The Applicant’s argument necessarily implies that there is no land in a particular urban release area that can ever be developed as part of one stage. That is, it implies that such land can never be developed as part of one stage even where it makes eminent sense to do so for sound planning reasons, including where this would bring about the more “timely and efficient release of [that] urban land” or where this would ensure that the development of that land occurs in the most “logical and cost-effective manner” as referred to in the text of cl 6.3 itself. This is antithetical to the purpose of the clause, and devoid of any sound rationale.

  1. The Applicant’s submission that a staging plan (by which it means, with multiple stages) ensures a pattern of “logical” and “cost-effective” development is acontextual, and nowhere explains why that must be so in all cases and in all situations.

Ground 1 – findings

  1. The resolution of Ground 1 turns upon a construction of the requirements of cl 6.3 of LEP 2015, followed by a consideration of the facts in the context of such construction to determine whether the DCP meets the requirements that flow from such a construction.

  2. In determining the construction of cl 6.3 it is necessary to consider the purpose, text and context of that clause. To that end it is necessary to consider the particular clause in the context of the whole of LEP 2015.

  3. The purpose of cl 6.3 is signified by the totality of Part 6 of LEP 2015 and its provision in an environmental planning instrument which is a statutory instrument made pursuant to the provisions of the EP&A Act. In that context, the purpose of a provision such as cl 6.3 is:

  1. To provide for some planning purpose as the EP&A Act is, as identified in its objects at s 1.3, an Act that makes provision for the management of the environment (in the broadest sense) in the context of appropriately controlling and managing the development of land;

  2. The aims of LEP 2015 as stated in cl 1.2 further identify the planning purpose of the instrument and the particular goals of the LEP, which include at cl 1.2(2)(a):

To provide a comprehensive planning framework for the sustainable development of all land in Campbelltown.

  1. Part 6 of LEP 2015 makes provision with respect to a number of diverse areas within the local government area that have been identified as appropriate for urban release. Whilst this case deals with one such area, Part 6 of LEP 2015 is not drafted just to address the Land but all land so designated;

  2. Part 6 of LEP 2015 has as its focus the provision of a cohesive and co-ordinated approach to the whole of an urban release, rather than a piecemeal approach to the release of urban land. It does so by requiring a whole of area approach to infrastructure (both public and private) and a co-ordinated approach to development of urban release land by making provision for the development of strategies that inform the nature of the development on the whole of the land designated urban release. However, it is notable that LEP 2015 does not require an urban release area to be developed as a single unified development. That is, the context of Part 6 of LEP 2015 is to inform how the total area will integrate both within the release area and the local context beyond the release area, without dictating that development within a release area must proceed as a single whole. Therefore, LEP 2015 permits any number of development applications to be made to develop parts only of the urban release land. This inherent flexibility indicates the manner in which the urban release area is intended to be addressed, by an overarching strategy within which the urban release land will conform, without detailing the specific requirements for each and every lot of land or part of the area identified;

  3. The identification of this overarching strategy is to be contained within a development control plan. The choice to provide for the strategy in such a planning document, rather than within LEP 2015 itself, reinforces that:

  1. Each of the urban release areas will require a differing response depending on individual characteristics and circumstances; and

  2. Rather than being a prescriptive development standard within an environmental planning instrument, a development control plan, but its nature, incorporates a degree of flexibility.

  1. This higher order strategic ambition is expressed both in the provisions of the specific “designated” and “essential” infrastructure considerations in cls 6.1 and 6.2, but also in the particulars of the factors that the development control plan referred to in cl 6.3(3);

  2. Of particular focus in these proceedings is the stated objective to cl 6.3. It is notable that there is no stated objective for Part 6 as a whole, however, objectives are identified for particular clauses within Part 6, such as those in cls 6.1(1) and 6.3(1). Whilst expressed as relating to a specific clause the objectives are not mutually exclusive and operate to give context to Part 6, again reinforcing the broad scale coordination of development within an urban release area;

  3. The particular objective as stated in cl 6.3(3) provides an express statement as to what cl 6.3 is intended to achieve. The objective is stated in a single sentence, and for that reason it should be read as a whole, and single words or phrases should not be taken out of the context of the whole. What is apparent from considering the stated objective as a whole is that the requirement for the staging plan and the development control plan is to ensure that development on land in an urban release area occurs in a logical and cost-effective manner. That is, the two specific elements (the staging and DCP) are to serve a purpose, not exist independent of that purpose; and

  4. The purpose that is to be served is, by its language, not a purpose that will produce a single result equally applicable to all urban release land. The use of the inherently variable and subjective language such as “logical and cost-effective” in cl 6.3(1) and “timely and efficient” in cl 6.3(3) indicates a site specific response having regard to features peculiar to the circumstances of each of the urban release areas.

  1. Having regard to the matters outlined above, the object or purpose of cl 6.3 of LEP 2015 is to ensure that an area identified as urban release land is developed in such a way that the end product is a coordinated whole, both within the urban release area and the local area within which it is located. To ensure that outcome, high-level strategies and essential infrastructure are to be identified for the whole urban release area prior to the approval of any development application so that any future development application can be assessed against such strategies to provide a consistent and coordinated whole.

  2. The text of cl 6.3 must also be considered and a meaning given to such text that is consistent with its purpose. The notable aspects of the text of the operative provisions as contained in cl 6.3(2) and (3) are:

  1. Both subclauses use the language of a development control plan “provid[ing] for” certain matters in a development control plan. With respect to this language I accept the submissions of the Respondents that such language is not interchangeable with the word “contain”. The language used is not specific in the sense that every detail of every aspect of a development is required to be set out in the development control plan, rather the development control plan is to expose to the reader the manner in which those factors will be judged in the context of any particular development application;

  2. The reference to a staging plan is also not a reference simpliciter. The text requires that the DCP must make provisions for “a staging plan for the timely and efficient release of urban land, making provision for necessary infrastructure and sequencing”. This language is consistent with the two stated objects of Part 6. The adoption of the language reinforces that the provision of infrastructure and staging that achieves the purpose is what is required, not a staging plan for the sake of a staging plan;

  3. The reference to a staging plan is a composite phrase and it cannot be broken into separate words and the ordinary meaning of the individual words being applied to inform the meaning. The reference to a staging plan in cl 6.3 is in all its uses qualified by the reference to its purpose. There being no definition of the composite phrase and it being adopted in a manner that indicates that it is intended to be construed by reference to some planning or land development outcome indicates that it is being used in a specialist sense. To enable, as a matter of fact, the determination of what such a specialist phrase means, it is of assistance (but not determinative) to consider the evidence of persons who hold expertise in matters of town planning and land development. From the expert evidence, for which there was general agreement on the essential requirements of a staging plan, I derive that in a town planning context a staging plan is identified more by reference to what it does not need to include rather than what is essential to include. It was agreed that a staging plan did not need to include an illustrative plan of sequential stages, or a requirement that development be carried out in any particular order or by reference to any specific staging. What will be necessary to be incorporated into a staging plan will vary depending upon the particular circumstances of the specific designated land and the development proposed. Such considerations will not be fixed in time but will vary from time to time depending upon circumstances. This description is consistent with the concept of high-level strategic planning goals being addressed as identified above. To that extent, from a planning perspective and based upon the text of the clause there is no indicia that would make a requirement of a staging plan that is an essential feature comprise more than one stage. Such identification of staging will depend upon the merit circumstances of each urban release area; and

  4. The reference in the text of cl 6.3(3)(a) to the making provision for “necessary infrastructure and sequencing” must also be read as a composite phrase. The qualifier word “necessary” qualifies both infrastructure and sequencing. Such a construction is consistent with the stated objectives that identifies a purpose for the staging plan and a scope for the infrastructure to be provided. The qualifier “necessary” is consistent with a limitation to what would be required to provide such “timely and efficient release of urban land”. As identified above, the reference to staging is where staging is to serve the purpose of the timely and efficient release of urban land. This can only mean that the staging plan need only make provision for the staging of development only where it is necessary to achieve that goal.

  1. Having regard to the text of the provision of LEP 2015 in the context of the purpose identified at [56] above, I find that cl 6.3 of LEP 2015 requires that a development control plan be in place prior to the determination of any development application for the relevant urban release land. That development control plan is to provide for (in the sense of making provision to enable the end purpose to be achieved), the matters identified in cl 6.3(3) without necessarily providing fixed and defined obligations as to the form of the development control plan (including any essential requirement that it provide for (in every circumstance) numerically more than a single stage). What the clause requires is a development control plan that identifies in broad, high-level strategic terms what will be necessary to ensure that the whole urban release area will, upon completion provide all necessary infrastructure; and will, during release, provide for necessary staging to ensure that releases are undertaken in a logical and cost-effective manner.

  2. Having regard to the nature of these proceedings and the onus borne by the Applicant I accept the submission of Lendlease at [48] above that in order to succeed on Ground 1 the Applicant must establish, on the balance of probabilities, that the DCP did not provide for a staging plan according to the established technical meaning of that term and, more specifically, that the content of the DCP lacked some attribute that was necessary or essential to any staging plan.

  3. The Applicant’s primary argument with respect to the adequacy of the DCP staging plan is based upon the contention that a staging plan as required by cl 6.3 must contain more than one stage and that such multiple stages must then specify the order in which events will occur. For the reasons outlined above, there is no contextual or textual foundation for such a requirement in order that a plan be considered a staging plan for the purposes of cl 6.3. What is required is a staging plan that provides for the timely and efficient release of urban land, making provision for necessary…sequencing. Inherent in this requirement is a consideration of factors peculiar to the particular urban release land. The staging plan will reflect the consideration of those factors and provide for sequencing if sequencing is necessary to achieve the planning outcome identified. This provision does not require that it is essential or necessary that all staging plans must provide for multiple stages and sequencing of those stages. Clause 6.3 both in its text and purpose, will depend upon the assessment of the requirements of the particular urban release area and there is nothing in the text or purpose that would preclude the staging plan providing for the development of the urban release are in a single stage. To approach the DCP requirements in the manner contended by the Applicant is to put form over substance and would operate inconsistently with the purpose of the urban release provisions in Part 6 of LEP 2015.

  4. The Applicant’s suggestion that, by providing for a single stage, the DCP defers the decision as to the appropriate number of stages to the developer, is not supported on the face of the DCP. The inclusion of Figure 1A in the DCP and cl 1.2 evidences that the Council did turn its mind to the question of staging and sequencing in the context of this particular urban release area. It fixed a number of stages and identified the matters which would need to be satisfied to ensure the provision of infrastructure (cl 1.2(a)) should a different staging programme be adopted by the developer. This is not a deferral of the requirement but a fixing of the staging by identifying an outcome or objective-based test if an alternative to the single stage is adopted. The control of the determination of the adequacy of the provision if a multi-stage development is proposed remains with the consent authority. The appropriateness of this determination of staging by the Council is not a matter that arises for consideration in these proceedings. In judicial review proceedings particularised in the manner of these proceedings, the merits underlying the decision are not reviewable, the question is solely focussed upon the legalities of the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [40]-[41]; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35]-[36].

  5. Further, I also accept the Council’s submission at [41] above that the requirement for a staging plan in a development control plan is to be determined by reference to the whole of that development control plan. In this case, whilst there is Figure 1A and cl 1.2(a) which deal directly with the requirements of cl 6.3 they are not the sole provisions of the DCP that address the “making provision for necessary infrastructure and sequencing” as is to be provided for in a development control plan: cl 6.3(3)(a). The DCP when considered as a whole made provision for the provision of infrastructure and its sequencing and established a framework for which facilitated or enabled the development of the Land in a manner that advanced the objective of cl 6.3.

  6. For those reasons, I am satisfied that at the time of the grant of the Consent a development control plan that provided for the matters specified in cl 6.3(3) had been prepared for the Land and that, in particular, the DCP provided for a staging plan for the timely and efficient release of the Land, making provision for necessary infrastructure and sequencing as required by cl 6.3(3)(a). Ground 1 of the Summons should be dismissed.

  7. In the event that I found that the DCP did not meet the requirements of cl 6.3 of LEP 2015 it does not automatically follow that the Consent would be declared to be invalid. Whether an act done in contravention of a statutory requirement is rendered invalid turns upon a determination of whether such a result was the consequence intended by the statutory provisions. The approach to this task has been formulated in the much-cited decision of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

  1. In light of my finding above, it is not necessary that in the present proceedings the issue of the legislative intent be determined. Accordingly, I will refrain from determining this issue until a circumstance arises that would warrant the question being determined.

  2. However, even if the DCP did not satisfy the requirements of cl 6.3 of LEP 2015 and such a non-compliance was found to have the consequence of the Consent being invalid I would, in the exercise of my discretion, have declined to make the declaration as sought in Ground 1.

  3. The discretion that is vested in the Court is wide and unconstrained, and Courts have been reluctant to catalogue all of the circumstances that would warrant the exercise of such a discretion. However, as was observed in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 342:

It is important to conclude by pointing out that that discretion is itself part of the statutory scheme. In this sense, the exercise of the discretion should not be seen as the illegitimate interference by judges in the even-handed application of planning law which local government authorities have the responsibility of enforcing. Instead, it is an important part — a fulcrum as it were — of that planning law, designed to introduce into it the protection, in reserve, of a salutary discretion. Because it exists in the Court, the discretion must also be considered by planners who invoke the Court's jurisdiction. Because it is established by Parliament and is expressed in such broad terms, it is a legitimate and integral part of the overall scheme of planning legislation operating in this State. It cannot be ignored. It should not be unduly circumscribed by a gloss of cases.

  1. In the circumstances of this case there are a number of factors that weigh in favour of the exercise of discretion to decline to make the declaration sought in Ground 1:

  1. First, the urban release land was being developed by a single entity and it was proposed that the urban release land be developed as a whole and not part only of the Land. Such an approach ensured that the efficiencies and logicality envisaged by Part 6 of LEP 2015 was able to be managed through the development application process;

  2. Second, the developer had entered into the VPAs relating to the provision of infrastructure within the urban release area and its surrounds (as identified at [8] above). The operation of the VPA identified specific infrastructure, set limits on the time at which it was delivered and constrained the release of the Land until such time as its terms were met. This provision was a legally enforceable means to achieve similar ends to that which was envisaged by the DCP requirement. The operation of cl 148G of the Environmental Planning and Assessment Regulation2000 (NSW) operates to prevent the subdivision of the Land until the obligation under the VPAs are fulfilled;

  3. The Applicant did not identify that the Consent had, in fact, failed to make provision for any necessary infrastructure or sequencing. There was no suggestion that the failure to provide for more than one stage in the staging plan would result in the development not providing for the “timely and efficient release of urban land, making provision for necessary infrastructure and sequencing”. Therefore, in this case, the designation of a single stage in the DCP would not operate to undermine the purpose of cl 6.3. Therefore, the breach, if established, was likely to be considered a technical breach in that it had no identified unacceptable environmental consequence;

  1. The Council is the party responsible for the preparation of the DCP and is, therefore, responsible for ensuring that its terms meets the requirements of cl 6.3. The breach, if established, was therefore beyond the control of Lendlease, and in light of there being no identified environmental consequence in the circumstances of this case it would be unreasonable to have that party bear the full burden of the breach; and

  2. The Consent is for initial works and not the whole development proposal. As a consequence, any future development applications will allow the consent authority to control any required sequencing through subsequent development applications and applications for subdivision.

Ground 2 – CCKPOM is invalid

  1. Ground 2 relates to the second declaration sought that the CCKPOM is not a validly approved KPOM for the purposes of cl 10 of Koala SEPP 2020. As identified in [28] of the Second Further Amended Summons the challenge to the validity of the CCKPOM related to the challenge to the validity of the Consent and was stated in the following terms:

28 The Consent was granted in breach of cl 10(1) of Koala SEPP 2020, and therefore is invalid and of no effect.

  1. The Applicant accepted that leave was required to bring a challenge to the validity of the KPOM as the proceedings were commenced more than 3 months after the making of the plan. Accordingly, it is fundamental to the Applicant being entitled to argue Ground 2 that an extension of time be granted. If not extension of time is granted the Applicant, not having commenced the proceedings within the time prescribed in r 59.10 of the UCPR, will be precluded from raising that ground of challenge.

  2. Rule 59.10 of the UCPR relevantly provides:

59.10   Time for commencing proceedings

(1)   Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2)   The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3)   In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following-

(a)   any particular interest of the plaintiff in challenging the decision,

(b)   possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c)   the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)   any relevant public interest.

The Campbelltown Comprehensive Koala Plan of Management (CCKPOM)

  1. On 12 November 2018, the Council submitted the CCKPOM to the then Department of Planning, Industry and Environment for approval as a plan of management under cl 13 of the State Environmental Planning Policy No 44 – Koala Habitat Protection (SEPP 44).

  2. SEPP 44 was repealed on 1 March 2020 and State Environmental Planning Policy (Koala Habitat Protection) 2019 commenced (Koala SEPP 2019).

  3. On some date in July 2020, the Fourth Respondent, the Secretary of the Department of Planning, Industry and Environment (the Secretary) issued a letter to the Council approving the CCKPOM under cl 17 of the Koala SEPP 2019. There is some dispute between the parties as to the date on which the CCKPOM was approved. The Applicant contends that it was 30 July 2020; the other parties contend that it was 23 July 2020. This dispute is of little moment with respect to the substantive claims, however, the Applicant notes that with respect to the r 59.10 of the UCPR application it may have some bearing on the length of the extension required, and for that purpose I will adopt the 30 July 2020 date.

  4. On 29 November 2020, Koala SEPP 2019 was repealed. On 30 November 2020, Koala SEPP 2020 commenced.

  5. At the date of the Consent, the CCKPOM was the sole approved KPOM relating to the Land.

  6. On 19 January 2021, the Applicant commenced proceedings.

  7. On 18 February 2021, the Applicant was granted leave to file a Further Amended Summons. On the first day of the hearing, the Applicant was granted leave to file a Second Further Amended Summons. During the course of the hearing, the Applicant sought leave to file a Third Further Amended Summons, which leave was refused.

Evidence

  1. In response to a request for particulars of the grounds upon which the Applicant relied for leave the following response was received:

The grounds on which the Applicant seeks an extension of the time for commencing proceedings under r 59.10(2) are:

A)   The approval of the CCKPoM was not made public until around 21 August 2020;

B)   It was not obvious to a non-lawyer that CCKPoM did not conclusively identify or protect core koala habitat;

C)   The applicant did not become aware of the potential grounds for challenging the CCKPoM until January 2021;

D)   The delay in challenging CCKPoM was short, being less than five months from the date on which the applicant became aware of the approval of CCKPoM.

  1. The Applicant relied upon the affidavit evidence of the President of the Applicant, Ms Gay, sworn 17 February 2021 explaining the delay in the bringing of proceedings. The totality of her evidence was:

1   I am president of the Applicant and have been president since its incorporation.

2   I first became aware that the Campbelltown Comprehensive Koala Plan of Management (CCKPoM) had been approved when I received an email on 22 August 2020 with a link to an article published in the Camden-Narellan Advertiser on 21 August 2020 entitled “Campbelltown's Koala Management Plan approved”. Annexed and marked “A” is a copy of the email I received with the news article.

3   I am also now aware, although I did not see it at the time, that a media release was posted on Campbelltown Council's website on 21 August 2020 regarding the approval of the CCKPoM. Annexed and marked “B” is a copy of the media release.

4 When I found out about the approval of the CCKPoM I thought it was a step in the right direction for the protection of koalas in the Campbelltown area because I thought the Koalas would be better protected with a Plan of Management in place.

5   I did not carefully read the Koala Plan of Management at the time and the Applicant did not obtain legal advice in relation to [sic] the because the Applicant thought it would be generally beneficial.

6   The Applicant decided to challenge the CCKPoM as a consequence of receiving legal advice in relation to the legal effect of the CCKPoM on 8 January 2021.

  1. Ms Gay was not cross-examined on her evidence.

  2. Mr Clark, Council’s Environmental Manager, provided evidence by affidavit affirmed on 29 March 2021. Mr Clark gave evidence, inter alia, relating to the process of the making of the KPOM. The process was lengthy and spanned several years, first commencing in late 2012. Thereafter he deposed that:

  1. The draft KPOM was publicly exhibited pursuant to a Council resolution made on 17 May 2016;

  2. Following public exhibition submissions were considered and a further draft KPOM was prepared and endorsed by Council for submission to the Secretary at its meeting of 13 December 2016;

  3. The Council was advised of further requirements of the relevant Government Departments in respect to the KPOM. A further draft KPOM was prepared and at its meeting of 10 July 2018 was endorsed for further submission to the Secretary; and

  4. The further draft KPOM was approved by the Secretary by letter dated 30 July 2020.

  1. The Secretary’s letter dated 30 July 2020 approving the CCKPOM noted that the Council had agreed to revise the CCKPOM and submit an amended CCKPOM for approval within the next two years.

  2. Ms Borg, Council’s Coordinator of Urban Release, in her affidavit sworn 22 March 2021 deposed that, as at the date of the swearing of her affidavit, there were 14 undetermined development applications pending to which the provisions of the KPOM relevantly related.

Applicant’s submissions

  1. The Applicant contended that an extension of time should be granted as:

  1. The Applicant is a group that has as one of its objects the preservation of koalas;

  2. There is public interest in this question being resolved in these proceedings as there is evidence that there are persons who are awaiting determination of development applications that rely upon the CCKPOM;

  3. If the issue is not resolved in these proceedings there is a risk other parties may challenge other koala plans of management and these proceedings will determine the minimum requirements for a valid KPOM;

  4. Whilst there was no evidence that Ms Gay was authorised to swear an affidavit on behalf of the Applicant and that the affidavit was sworn, on its face, in her personal capacity, an inference should be drawn that at least the executive of the Applicant shared her opinions and reasons for not bringing the proceedings within time;

  5. There are no relevant persons with a direct interest in the validity of the CCKPOM that would be required to be parties to the proceedings if leave was granted. However, there were persons who had development applications pending that may be indirectly affected by a finding of invalidity but it was in their interests that the issue be resolved; and

  6. The Applicant has otherwise pursued these proceedings expeditiously – it is still only 9 months since the plan was made.

Lendlease’s submissions

  1. The Applicant now accepts that r 59.10 of the UCPR applies to its challenge such that it requires an extension of time to challenge the making of the CCKPOM. Rule 59.10 of the UCPR provides for a 3-month time limit. The challenge to the CCKPOM was made almost 6 months after it was made, that is almost twice the time permitted by the rule. Contrary to the Applicant’s submission, a challenge brought after almost twice the time permitted is not to be characterised as “short”.

  2. The Applicant has provided particulars as to the grounds on which it relies in support of an extension. Having regard to those particulars and as to the matters listed under r 59.10 of the UCPR:

  1. The Applicant does not assert any particular interest in challenging the decision in its particulars;

  2. Prejudice would be caused. In this regard, account must be taken of the interests of Lendlease who pursued a development application on the basis of the validity of the CCKPOM. The Council has also served affidavit evidence from Belinda Borg affirmed 22 March 2021 and Mitchell Clark affirmed on 29 March 2021 pointing to other prejudices. The Applicant does not assert anything as to this matter in its particulars;

  3. The Applicant became or, by exercising reasonable diligence, should have become aware of the decision at the time it was made. According to the affidavit of Ms Gay she has been aware of it since 22 August 2020; and

  4. The affidavits from Belinda Borg and Mitchell Clark also provide public interest reasons which would tell against an extension of time. The Applicant does not assert anything as to this matter in its particulars.

  1. In this regard, the same approach should be adopted as in Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, where the High Court refused an extension of time under its rules to a proceeding seeking certiorari (where the validity of Commonwealth legislation was being challenged) and otherwise refused certiorari on discretionary grounds (see [47], [79], [126]-[131]; [229], [282]). In that case, the Court refused relief on these bases as a threshold without proceeding to consider the merits of the substantive arguments.

Council’s submissions

  1. In determining whether to grant an extension of time to enable the Applicant to seek relief against the Secretary’s decision to approve the CCKPOM, it is necessary for the Court to have regard to the history of the matter, the conduct of the parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. In addition to the factors mentioned in r 59.10(3) of the UCPR, matters that ordinarily will fall for consideration include the length of any delay, the reason for it and whether the applicant has a fairly arguable case: Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [18]-[19].

  2. Council contended that the following factors, inter alia, weigh against the discretionary grant of an extension of time under r 59.10(2) of the UCPR:

  1. The period of delay in challenging the CCKPOM is material, especially in a context where, since 2019, the Applicant has been engaged in a challenge to the Consent and may be assumed to have been on notice of the planning considerations that may underlie any development of the Land. The Applicant has not demonstrated any satisfactory reason for the delay in circumstances where the President of the Applicant, Ms Gay, deposed that she became aware on 22 August 2020 that the CCKPOM had been approved;

  2. The Applicant’s challenge to the validity of the CCKPOM lacks merit. Even if it be assumed in the Applicant’s favour that Ground 2 (or some aspect thereof) is reasonably arguable, these proceedings, which centrally involve a challenge to the Consent (which was granted without, and without need for, any detailed engagement by the Panel with the terms of the CCKPOM or Koala SEPP 2020), are not an appropriate vehicle for any general challenge to the CCKPOM;

  3. The Applicant is accordingly not prejudiced if precluded from agitating a ground of review which challenges the validity of the CCKPOM. The Applicant’s challenge to the grant of the Consent on the other grounds before the Court otherwise remains extant;

  4. If the CCKPOM were declared invalid, there would not be a koala plan of management in force for the Campbelltown local government area that is operative for the purposes of Koala SEPP 2020. That is a matter that would likely hamper, rather than advance, the claimed interests of the Applicant;

  5. Further, there are adverse implications for Council and other persons (and also to the long term welfare of koalas) in the event that a challenge to the CCKPOM is permitted to proceed; and

  6. The power relied upon to make the challenged CCKPOM is a legacy transitional provision in the Koala SEPP 2019, which is not relevantly replicated in the State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP 2021). The Court’s determination of whether the Secretary was authorised to approve the CCKPOM pursuant to cl 17 of the Koala SEPP 2019 does not involve the determination of any larger question about the validity of koala plans of management approved pursuant to the provisions of other planning instruments, including the newly made Koala SEPP 2021.

  1. Balancing the relevant factors, the Court should refuse the extension of time that has been sought.

The Secretary’s submissions

  1. The Secretary provided comprehensive submissions on the applicability of r 59.10 of the UCPR to the present proceedings. However, as the Applicant has now accepted that it requires an extension of time the argument as to the applicability of r 59.10 of the UCPR to the current proceedings no longer requires determination.

  2. The Secretary submitted that an extension of time should not be granted as:

  1. The Applicant’s delay in commencing proceedings to challenge the CCKPOM has upset the orderly operation of the statutory scheme. The Secretary’s decision to approve the CCKPOM was made on 20 July 2020. The 3-month limitation period expired by no later than 20 October 2020. The Consent which the Applicant challenges was not given until 16 December 2020;

  2. Had the Applicant acted promptly, the validity of the CCKPOM could have been resolved expeditiously and in advance of the decision on the development application or, alternatively, the decision-maker could have delayed deciding the development application pending the determination of the challenge to the CCKPOM. Either way, had the Applicant commenced promptly, the validity of the CCKPOM could have been resolved before the Panel made its decision. Instead, the Applicant waited until after the Panel’s decision to commence proceedings challenging the Secretary’s decision. This approach is antithetical to the purpose of r 59.10 of the UCPR, which is to ensure that challenges to the exercise of executive power are brought promptly. Notably, the Applicant appears to accept that it was aware of the Secretary’s decision under challenge by approximately 21 August 2020 but it did not take steps to challenge the Secretary’s decision until after the Consent now in issue was granted; and

  3. The difficulties caused by the Applicant’s delay will likely cause difficulties for third parties, who have had development consents granted in reliance of the CCKPOM.

  1. For these reasons, leave to extend time to challenge the Secretary’s decision should not be granted. This does not mean that the Applicant cannot challenge the Panel’s decision; it means only that the Applicant cannot challenge the Panel’s decision on the ground that the earlier decision of the Secretary in respect of which there is a time bar is invalid. Further, even if r 59.10 of the UCPR does not apply directly, it furnishes strong discretionary reasons for refusing the relief in Ground 2.

Findings on the application for an extension of time

  1. It appears from the material tendered in the proceedings, that at all relevant times prior to the provisions of the Applicant’s submissions dated 16 April 2021 and filed in the proceedings, the Applicant principally contended that it was not required to obtain an extension of time to challenge the approval of the KPOM. It had contended in its Further Amended Summons filed on 18 February 2021 that:

Uniform Civil Procedure Rules 2005, r 59.10

34 Rule 59.10(1) of the Uniform Civil Procedure Rules 2005 provides that proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

35   The present proceedings were commenced more than 3 months after the decision of the Secretary to approve the CCKPOM.

36 Rule 59.10(1) does not apply so as to protect the CCKPOM from review on the grounds of jurisdictional error.

37   The errors alleged at paragraph [22] above are jurisdictional errors.

38 In the alternative to [36]-[37] above, if these proceedings are subject to r 59.10(1) of the UCPR, the applicant seeks an extension of time pursuant to r 59.10(2).

  1. The totality of the Applicant’s written submissions relating to this question were comprised in [100]-[101] where it was stated:

100   The applicant does not require an extension of time to challenge the Consent. These proceedings were commenced less than a month after the making of that decision.

101   However, the applicant is willing to proceed on the basis that it does require an extension of time under r 59.(2) (sic) of the Uniform Civil Procedure Rules (UCPR) to challenge the approval of CCKPOM. Paragraphs [36]-[37] of the [Further Amended Summons] which allege to the contrary are not pressed.

  1. Thereafter, pursuant to leave granted on 26 April 2021 the Second Further Amended Summons was filed which stated the Applicant’s position in the following manner:

Uniform Civil Procedure Rules 2005, r 59.10

1 Rule 59.10(1) of the Uniform Civil Procedure Rules 2005 provides that proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

2   The present proceedings were commenced more than 3 months after the decision of the Secretary to approve the [Campbelltown Comprehensive Koala Plan of Management].

3   DELETED

4   DELETED

5 The applicant seeks an extension of time pursuant to r 59.10(2).

  1. It is apparent that from at least 18 February 2021 the Applicant was aware that there was an issue in the proceedings as to whether an extension of time was required and, if required, whether such extension should be granted. Notwithstanding this appreciation, the Applicant has provided no real explanation for the failure to bring the proceedings within the 3 months provided for in r 59.10 of the UCPR. The evidence discloses that the making of the CCKPOM was made public and that at least Ms Gay was aware from a time within which proceedings could have been commenced without the need for an extension. The Applicant suggests that it would not have been apparent to a non-lawyer that the CCKPOM was potentially invalid and that legal advice on that issue was not obtained until January 2021. This explanation is not compelling. The evidence of Ms Gay is that at least to her she was prepared to assume that the CCKPOM would provide protection and would be generally beneficial. This does not indicate that the CCKPOM was examined by a lay person with a view to determining validity, rather it indicates a lack of interest in validity at that time. Therefore, the fact that some advice other than lay advice may have been required to determine validity is not an explanation for the delay – as no lay examination was undertaken which exposed that the asserted validity was “not obvious” on that examination. This explanation is pure speculation. On the evidence, at the time of the making of the CCKPOM, there was no interest in validity and, therefore, whether a lay person would have needed assistance to identify invalidity does not arise.

  1. With respect to the need for legal advice, the evidence discloses that legal representation had been retained by the Applicant for the purpose of challenging the Consent. There is no evidence as to when the legal services were retained. The only evidence is that legal advice was obtained in January 2021. Absent evidence as to the date on which such advice was sought (rather than received) there is no inference available that the delay did not rest with the Applicant. Accordingly, the fact that legal advice was not received until January 2021 does not explain why it was not sought or obtained prior to that date or that the delay was the cause of proceedings not being commenced in time rather than an explanation as to why they were commenced in January.

  2. Accordingly, the Applicant has failed to provide any adequate explanation as to why, with knowledge of the making of CCKPOM it did not commence proceedings in time.

  3. The Applicant, apart from identifying an interest in koala protection, has not identified any particular interest in challenging the decision as referred to as a relevant consideration in r 59.10(3)(a) of the UCPR. However, proceedings such as this are able to be brought by any person under the open standing provisions of s 9.45 of the EP&A Act. Accordingly, the lack of a particular identified interest is not a matter that I would consider in the circumstances of this case would weigh in the exercise of the discretion conferred by r 59.10(2) of the UCPR.

  4. The potential prejudice to persons and the public interest more generally, however, does weigh heavily against the exercise of discretion to extend time in this case. As the evidence discloses, not only was the Consent granted after the expiration of the time period for the bringing of proceedings, but further development applications have been lodged since that time that rely upon the existence of the CCKPOM to enable determination. This fact does weigh against the exercise of discretion. If proceedings were brought in time the prospect of development consents being challenged on the basis of alleged invalidity would have been communicated to the persons making development applications and decisions could have been made as to whether to wait an outcome of such challenge before embarking on what can be complex and expensive development application procedures. One of the purposes of the imposition of a time period for the bringing of proceedings challenging the validity of a decision to make an instrument such as a KPOM is, as the Secretary submitted, that challenges are brought promptly. The imposition of a time frame and the prompt bringing of proceedings enables some certainty to be available to persons making development decisions with respect to land and requires those who have an interest in the validity of such instruments to act promptly to ascertain whether they wish to bring proceedings. The extension of time in this case would cause prejudice, further delay and uncertainty to development proposals that were lodged and/or determined after the time for bringing the proceedings has expired. Where there is evidence, such as the evidence in this case, of the number of such persons being more than nominal and relying on actions taken after the expiration of the period some compelling factor would have to be present to counter the weight of such a consideration and in this case the Applicant has failed to identify such a factor.

  5. I accept the submission of the Council at [90(6)] above that the power relied upon by the Applicant to make the challenged CCKPOM is a legacy provision in the Koala SEPP 2019, which is not relevantly replicated in the Koala SEPP 2021. A determination of whether the Secretary was authorised to approve the CCKPOM pursuant to cl 17 of the Koala SEPP 2019 does not involve the determination of any larger question about the validity of koala plans of management approved pursuant to the provisions of other planning instruments, including the newly made Koala SEPP 2021. Further, it is intended that CCKPOM will be amended and submitted for approval before July 2022 and, therefore, the continuing utility of the CCKPOM is also limited.

  6. For those reasons, having considered the evidence and submissions, I decline to make an order extending time for the commencement of proceedings in so far as these proceedings seek to challenge the validity of the CCKPOM. Accordingly, that part of the proceedings relating to declaration 2 as supported by the reasons identified in Ground 2 of the Second Further Amended Summons having not been brought within the time provided for in r 59.10 of the UCPR are dismissed.

Ground 3 – Inconsistency with the CCKPOM

  1. Ground 3 contends, in effect, that it was a requirement of the EP&A Act by operation of cl 10(2) of the Koala SEPP 2020 that development consent relating to the Land could only be granted if such development consent was consistent with the CCKPOM. For reasons particularised by the Applicant in the Second Further Amended Summons it contended that the Consent was not consistent with the CCKPOM.

  2. However, as is identified at [9]-[10] above the Land had obtained Biodiversity Certification at the time of the grant of the Consent. As a matter preliminary to the consideration of whether the Consent was consistent with the CCKPOM is the question as to whether any provision of the Koala SEPP 2020 had any relevant operation on the subject matter of the Consent and its assessment. If the Biodiversity Certification operated such that the Koala SEPP 2020, including cl 10, did not have any operative effect on the Consent and its assessment, then Ground 3 must fail. Accordingly, the consequence of the Biodiversity Certification on the operation of the provisions of the Koala SEPP 2020 must be determined first.

Relevant legislative provisions

  1. The BC Act makes provision for the maintenance and protection of biodiversity and biodiversity values of the environment. To that end s 1.5 defines the concepts in the following manner:

1.5   Biodiversity and biodiversity values for purposes of Act

(1)   For the purposes of this Act, biodiversity is the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems.

(2)   For the purposes of this Act, biodiversity values are the following biodiversity values—

(a)   vegetation integrity—being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state,

(b)   habitat suitability—being the degree to which the habitat needs of threatened species are present at a particular site,

(c)   biodiversity values, or biodiversity-related values, prescribed by the regulations.

  1. The purposes of the BC Act as identified at s 1.3 include:

1.3   Purpose of Act

The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular—

(a)   to conserve biodiversity at bioregional and State scales, and

(b)   to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and

…

(f)   to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and

(g)   to regulate human interactions with wildlife by applying a risk-based approach, and

(h)   to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and

(i)   to support and guide prioritised and strategic investment in biodiversity conservation, and

(j)   to encourage and enable landholders to enter into voluntary agreements over land for the conservation of biodiversity, and

(k)   to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, and

(l)   to establish a scientific method for assessing the likely impacts on biodiversity values of proposed development and land use change, for calculating measures to offset those impacts and for assessing improvements in biodiversity values, and

(m)   to establish market-based conservation mechanisms through which the biodiversity impacts of development and land use change can be offset at landscape and site scales, and

…

  1. Part 8 of the BC Act makes provision for the biodiversity certification of land. The relevant consequences upon the development application process in the EP&A Act on the conferral of the Biodiversity Certification are provided in s 8.4(2) and (3) of the BC Act as follows:

(2)   Development (including State significant development) under Part 4 of the Planning Act An assessment of the likely impact on biodiversity of development on biodiversity certified land is not required for the purposes of Part 4 of the Environmental Planning and Assessment Act 1979.

(3) A consent authority, when determining a development application in relation to development on biodiversity certified land under Part 4 of the Environmental Planning and Assessment Act 1979, is not required to take into consideration the likely impact on biodiversity of the development carried out on that land.

  1. Section 4.15 of the EP&A Act relevantly provides:

4.15   Evaluation

(1)   Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and…

  1. The Koala SEPP 2020 is an environmental planning instrument as defined in the EP&A Act at s 1.4. Clause 3 sets out the Aims of the SEPP as:

3   Aims of Policy

This Policy aims to encourage the proper conservation and management of areas of natural vegetation that provide habitat for koalas to ensure a permanent free-living population over their present range and reverse the current trend of koala population decline—

(a)   by requiring the preparation of plans of management before development consent can be granted in relation to areas of core koala habitat, and

(b)   by encouraging the identification of areas of core koala habitat, and

(c)   by encouraging the inclusion of areas of core koala habitat in environment protection zones.

  1. Part 2 of the Koala SEPP 2020, in which cl 10 forms part, makes provision of the development control of koala habitats in the following terms:

Part 2 Development control of koala habitats

7   Land to which this Part applies

This Part applies to land—

(a)   that is land to which this Policy applies, and

(b)   that is land in relation to which a development application has been made, and

(c)   that, whether or not the development application applies to the whole, or only part, of the land—

(i)   has an area of more than 1 hectare, or

(ii)   has, together with adjoining land in the same ownership, an area of more than 1 hectare.

8   Step 1—Is the land potential koala habitat?

(1)   Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies, the council must be satisfied as to whether or not the land is a potential koala habitat.

(2)   The council may be satisfied as to whether or not land is a potential koala habitat only on information obtained by it, or by the applicant, from a person who is qualified and experienced in tree identification.

(3)   If the council is satisfied—

(a)   that the land is not a potential koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or

(b)   that the land is a potential koala habitat, it must comply with clause 9.

9   Step 2—Is the land core koala habitat?

(1)   Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a potential koala habitat, it must satisfy itself as to whether or not the land is a core koala habitat.

(2)   The council may be satisfied as to whether or not land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management.

(3)   If the council is satisfied—

(a)   that the land is not a core koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or

(b) that the land is a core koala habitat, it must comply with clause 10.

10   Step 3—Can development consent be granted in relation to core koala habitat?

(1)   Before granting consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a core koala habitat, there must be a plan of management prepared in accordance with Part 3 that applies to the land.

(2)   The council’s determination of the development application must not be inconsistent with the plan of management.

11   Guidelines—matters for consideration

Without limiting clause 18, a council must take the guidelines into consideration in determining an application for consent to carry out development on land to which this Part applies.

  1. Part 3 of the Koala SEPP 2020 made provision for the plans of management in the following terms:

Part 3 Plans of management

12   Preparation of plan of management

(1)   A plan of management may be prepared for—

(a)   all land to which this Policy applies in a local government area,

(b)   a part of that land, including an area of land that is the subject of a development application.

(2)   Anyone, including a council, may prepare a plan of management.

(3)   A plan of management is to be prepared in accordance with the guidelines.

13    (Repealed)

14   Approval of plan of management

(1)   A plan of management prepared by a council has no effect unless it is approved by the Planning Secretary.

(2)   A plan of management prepared by a person other than a council has no effect unless it is approved by the council for the relevant local government area and by the Planning Secretary.

(3)   A plan of management takes effect on the day it is approved by the Planning Secretary or on a later day specified in it for the purpose.

15   Amendment or repeal of plan of management

A plan of management may be amended or repealed by another plan of management prepared and approved in accordance with this Part.

Applicant’s submissions

  1. Clause 10(1) of the Koala SEPP 2020 requires that a KPOM be in force before a development consent is granted and cl 10(2) requires that the determination of any development application must not be inconsistent with the KPOM.

  2. The Land is biodiversity certified land within the meaning of the BC Act. The consequence is that s 8.4(2) relieves the applicant for development consent from any obligation to assess the impacts of a given development application on biodiversity. Section 8.4(3) relieves the decision-maker from the obligation to consider the impacts of a given development application on biodiversity.

  3. However, neither s 8.4(2) or (3) of the BC Act exclude the application of cl 10 of the Koala SEPP 2020 because, properly understood, cl 10 does not require either the assessment or consideration, instead it requires the existence of a KPOM and consistency with that KPOM. Clause 10 is not a provision that governs the manner of making a determination but one that imposes absolute limits on the consent authority’s powers.

  4. The fact that cl 10 is contained in “Part 2-Development control of koala habitats” is of no consequence, it is the substance of the requirement in the text to cl 10 that must be examined. Neither the whole of Part 2 nor the preceding clauses are matters to which s 8.4 of the BC Act relates. Those provisions require the reaching of a state of satisfaction not an assessment of impact. Further, even if in reaching the state of satisfaction dictated by Part 2 a process of assessment was required to be undertaken, it is not the type of assessment to which s 8.4 of the BC Act is directed.

  5. There are good reasons why the provisions of cl 10 of the Koala SEPP 2020 would not be considered to fall within the provisions to which s 8.4 of the BC Act relate. Biodiversity certification is concerned with biodiversity values of particular land whereas the aim of the Koala SEPP 2020 is “to encourage the proper conservation and management of areas of natural vegetation that provide habitat for koalas to ensure a permanent free-living population over their present range”. To achieve the object of the SEPP requires a landscape scale approach, which is to occur through the mechanisms of a KPOM. Therefore, there is no redundancy in the Koala SEPP 2020 continuing to require consistency with KPOM on biodiversity certified land.

Lendlease’s submissions

  1. There is a clear intention that the BC Act covers the field of environmental assessment such that where biodiversity certification has been obtained those provisions of the EP&A Act that relate to the assessment of the impact on biodiversity are no longer necessary considerations for the determination of any environmental assessment: Part 4 Assessments (s 8.4(1) and (2)) and Part 5 Assessments. This identification of all the circumstances in which an assessment of biodiversity under the EP&A Act may be required indicates an intention that the BC Act provisions operate to remove from an EP&A Act consideration any matter that pertains to biodiversity and biodiversity values where land is biodiversity certified land.

  2. Accordingly, the Biodiversity Certification had the effect that the Council could not have been required to assess or consider “the likely impact on biodiversity” of the development on that land. Clearly “the likely impact on biodiversity” encompasses impacts on particular animal and plant species, and, therefore, logically includes the presence and population of koala species and koala habitat within an area.

  3. Any requirement under cl 10 was obviated by the effects of biodiversity certification under the BC Act. Any obligation under that clause was either removed or had its content reduced to nil (it does not matter which). As a matter of substance, the demanding Biodiversity Certification process that the Council undertook on the instigation of Lendlease was regarded by the legislature as an adequate substitute for the process provided by Part 2 of the Koala SEPP 2020.

  4. The Koala SEPP 2020 was issued under the EP&A Act, and Part 2 (which includes cl 10) is plainly for the purposes of development assessment, as is evidenced by the heading to that Part which heading forms part of the SEPP: s 35(1) of the Interpretation Act 1987 (NSW). The focus of Part 2 and cl 10 of the Koala SEPP 2020 is the determination of a development application under Part 4 of the EP&A Act, and the core provision of Part 2 refers to steps to be taken “[b]efore a council may grant consent to a development application for consent to carry out development on [relevant] land”.

  5. Clause 10 should not be viewed in isolation but as part of Part 2 of Koala SEPP 2020, which involves three key steps – cl 10 is the last step in the three-step process. That process is only triggered by the requirement to consider the SEPP 2020 as part of the assessment required by s 4.15 of the EP&A Act. That context reinforces the purpose of the exercise being the progressive assessment of a development application where the outcome of the stepwise assessment is what dictates the progress of the assessment through each of the three steps identified.

  6. The Applicant’s contention that cl 10 “does not require either assessment or consideration”, but “[i]nstead it requires (a) the existence of a KPOM and (b) consistency with that plan”, substantially mischaracterises that for which cl 10 provides.

  1. The regime under Part 2 involves the following steps as part of the process of assessing a pending development application and the possible granting of consent:

  1. A process of assessment and consideration in reaching a state of satisfaction as to whether or not the Land is a potential koala habitat for the purposes of cl 8;

  2. A process of assessment and consideration in reaching a state of satisfaction as to whether or not the Land is a core koala habitat for the purposes of cls 9 and 10 (that satisfaction being expressly referenced in cl 10); and

  3. A process of assessment and consideration as to whether or not the determination of the development application would be consistent with a plan of management for the purposes of cl 10.

  1. The Applicant’s contention would also undermine various purposes of the BC Act (including those in s 1.3(g), (h), (i), (j), (k), (l) and (m)) and the assessment regime established by it. Unlike the provisions of the Koala SEPP 2020 (especially in Part 2) which relate to the position of the Council, biodiversity certification is of a higher order, being conferred by the Minister. The Minister can only confer biodiversity certification if “satisfied that (having regard to the biodiversity certification assessment report) the approved conservation measures under the biodiversity certification adequately address the likely impacts on biodiversity values of the biodiversity certification of the land”: s 8.7(1). This will necessarily embrace koalas and koala habitat where relevant to a given site, such that the Minister will have to be satisfied that the approved conservation measures under the biodiversity certification adequately address the likely impacts on koala habitat. And the way the impacts are addressed is by the approved site-specific conservation measures. There is then no utility to a lower order, less rigorous process culminating in the management of impacts through a plan of management.

Findings on whether cl 10 of the Koala SEPP 2020 applied to the DA

  1. The determination of this issue turns upon the effect of s 8.4 of the BC Act. It is clear from the express terms of s 8.4 that if cl 10 of the Koala SEPP 2020 involves the likely impact on biodiversity of the development carried out on that land, then an assessment of such matter is not required to be taken into consideration in the determination of a development application for that land. That is, it is no longer a mandatory relevant consideration as required by s 4.15 of the EP&A Act that such matters be considered by the consent authority. This consequence of the operation of s 8.4 of the BC Act is expressly identified by s 8.4(6) which provides that:

(6)   This section prevails This section has effect despite anything to the contrary in the Environmental Planning and Assessment Act 1979 or Part 7 of this Act.

  1. The issue then turns upon a consideration of cl 10 of the Koala SEPP 2020 to determine whether it can be characterised as a matter to which s 8.4 of the BC Act relates, namely whether it involves the consideration of the likely impact on biodiversity of the development carried out on the Land.

  2. Section 8.4 is only engaged where a consent authority is determining a development application. The determination of a development application is subject to the requirements of s 4.15 of the EP&A Act that provides the matters for consideration in the determination of a development application and those matters are mandatory relevant considerations in any such determination. On the facts of this case, one of the mandatory relevant considerations are the provisions of the Koala SEPP 2020 (s 4.15(1)(a)) unless s 8.4 of the BC Act removes the consideration from those that are mandatory.

  3. For the reasons that follow, I find that cl 10 of the Koala SEPP 2020 does relate to a consideration of the likely impact of biodiversity of the DA and, therefore, by operation of s 8.4 of the BC Act is not a matter that is required to be taken into account in the determination of the DA.

  4. As was an agreed position, koalas and koala habitat are elements of biodiversity and biodiversity values (see defined terms at [107] above) to which the provisions of the BC Act relate.

  5. Clause 10 of the Koala SEPP 2020 must be construed within the context of the whole of the instrument in which it is found. The stated aims of the Koala SEPP 2020 (as identified at [111] above) relate to the identification of, and management of, core koala habitat to encourage the proper conservation of such core habitat to ensure the maintenance of a koala population. One of the means by which such an aim is to be achieved is by requiring the preparation of a KPOM before development consent can be granted. Whilst the SEPP makes provision for the making of such a KPOM the purpose in the making and implementation of a KPOM must be to achieve the stated aims.

  6. The only operational requirement that gives the KPOM, once made, any force is cl 10 and cl 10 only applies if positive finding have been made in step 1 (cl 8) and step 2 (cl 9). Each of those clauses require an assessment of whether the Land is potential koala habitat and whether it is also core koala habitat. Clause 10 has no work to do unless the states of satisfaction required by step 1 and step 2 are achieved. This progressive stepped process provides for a coordinated process of consideration such that cl 10 cannot be viewed alone separate from the totality of the interlinked process provided for in Part 2.

  7. Part 2 is only engaged where a development application has been made. That is, the process is only triggered where an assessment of the consequences of the change that will be occasioned by development is being considered. In this SEPP that change is the effect on core koala habitat, the purpose of considering that change is to manage the impacts on the koala population. The relevant considerations for the management of that impact is the existence of a KPOM (prepared to meet the aims of the SEPP) and a requirement that the development application be consistent with the requirements of that KPOM: cl 10. There can be no purpose served either by the provisions of the SEPP relating to “development control” in Part 2 or a requirement for consistency with a KPOM other than to manage the impact on biodiversity by considering the impacts on the core koala habitat that supports the existing and future koala populations. Such a consideration cannot be construed as anything other than a consideration of the likely impact on biodiversity of the development proposed to be carried out on the Land.

  8. The Applicant’s contention that cl 10 does not require an assessment of impact but rather merely requires the existence of certain facts, being the existence of the KPOM and consistency with it, fails to recognise the context in which cl 10 is found and the clear purpose of the Koala SEPP 2020. The integrated assessment as outlined above speaks against this construction, to construe it as anything other than a requirement for the assessment of impact is to ignore the purpose of the exercise identified in Part 2 and the purpose which the KPOM to which it refers is intended to serve.

  9. The concept of “consistency” with the KPOM is inherently evaluative. Such a concept does not require strict compliance. In this context, consistency with the KPOM requires an evaluation as to whether what is proposed is a development application that will achieve the objective of the protective measures. That finding cannot be divorced from the essential process that must be undertaken to reach the necessary state of satisfaction. This enquiry is not of an objectively identifiable fact, but a process, the satisfaction is the completion of the process. It is the process to which cl 10(2) refers, not only its conclusion.

  10. The construction contended for by the Applicant is also inconsistent with the provisions and purpose of the BC Act. The BC Act provides a separate assessment and certification process, which process involves the assessment of impacts on biodiversity and biodiversity values. That assessment is intended not to be required to be replicated by the EP&A Act assessments. An approach that looks strictly to the words of a single clause in an statutory instrument made under the EP&A Act to ascertain if the words used require an assessment of impact, avoids the overarching purpose of the separate process and the consequences of biodiversity certification and s 8.4 and, in particular, s 8.4(6) of the BC Act. The construction proposed by the Applicant would produce an overwhelming inconvenience to both consent authorities and persons who make development applications to traverse every environmental planning instrument clause by clause and construe the terms to determine if that particular clause has a consequence that can be characterised as assessing impact or not. The failure to perform this task effectively puts at risk the legality of any development consent granted. This inconvenience does not occur if the purpose of an environmental planning instrument (or any relevant part) is considered by having regard to the purpose it is intended to serve by the carrying out of the process it identifies. Such a construction is to be preferred.

  11. The Applicant’s submission that there is clear utility in cl 10 continuing to operate notwithstanding the Biodiversity Certification as it looks to a landscape-based rather than an impact-based assessment on a single development application is not apparent on a proper construction of the BC Act and the Koala SEPP 2020. The BC Act, by s 8.3, requires a consideration of the proposed conservation measures to offset impacts on biodiversity values. The definition of biodiversity values requires a consideration of the extent to which the habitat needs of a species such as koalas are present on a site. Such an analysis is broader than the identification of core koala habitat and would also include all other habitat needs, including (if appropriate to the species in question) the movement of such species through its habitat. The Koala SEPP 2020 is limited to the preservation of core koala habitat. Further, contrary to what was submitted, the KPOM is not required to be landscape based taking into account the whole of the local government area habitat resources. A KPOM may be made for an area of land that is the subject of a development application: cl 12(1)(b) by any person: cl 12(2).

  12. Accordingly, having regard to the fact that the Land is biodiversity certified land pursuant to the BC Act, the provisions of cl 10 of the Koala SEPP 2020 are not required to be taken into consideration in the determination of the DA. Therefore, Ground 3 must fail, as even if the facts were established as pleaded and the requirements of cl 10(2) were not met, such a failure would not operate to invalidate the Consent, as a consideration of cl 10 of Koala SEPP 2020 was not a mandatory consideration in the determination of the DA. Ground 3 is dismissed.

Leave to further amend Summons and reasons for refusal

  1. Immediately after the luncheon adjournment on the second day of the hearing, which was also after evidence had closed and the Applicant had commenced its closing submissions, the Applicant indicated that it would be seeking leave to further amend its Summons. The Applicant proposed by way of a document referred to as the Third Further Amended Summons to raise in terms that the KPOM was not a valid KPOM made under Koala SEPP 2019. It was stated that (Tcpt, 27 April 2021, p 144(28-31)):

WALKER: The amendment is essentially to separate out the pleading of the invalidity of the comprehensive plan of management from the consent, so we’re [sic] essentially pleaded all of the same grounds of invalidity of the comprehensive plan of management, but we’ve pleaded them as a standalone.

  1. The Council opposed the granting of leave. The other Respondents did not wish to be heard on the application for further leave to amend.

  2. After hearing from both the Applicant and the Council leave was refused and I indicated I would provide that the reasons for refusing leave in these reasons.

  3. I accept the Council’s submissions that at all times the Applicant had pleaded its case on the basis that the KPOM was a step in the process towards challenging the development consent; an incident of its challenge to the development consent. It was no part of the Applicant’s case that independent of the challenge to the development consent that the KPOM should be held to be invalid.

  4. The Respondents, and particularly the Council made forensic decisions and the decisions may have been different if the case had been pleaded in that fashion earlier.

  5. Further, the KPOM is of interest to persons in addition to the Respondents in this case. The evidence is that there are a number of consent holders and applicants for development consent that are subject to the KPOM and a declaration may have grave impacts upon the capacity of them to maintain or obtain any relevant development consent.

  6. There was no real explanation provided as to why the Applicant had not sought to raise this issue as a separate claim earlier. The Applicant contended that it believed they had pleaded this earlier (Tcpt, 27 April 2021, p 150(17-29):

In relation to the earlier proceedings, just to clarify, the previous consent was granted in 2019 when there was no approved plan of management. Obviously, this plan did exist in draft form, but it wasn’t relied on for the grant of consent. This Koala Plan of Management was purportedly approved in July 2020, and then it was relied upon in this consent which is granted in December 2020. I submit that the applicant’s right to bring proceedings to remedy or restrain a breach of the Act, in this case, there’s no reason not to allow that application to proceed, because it doesn’t – notwithstanding there was unclarity [sic] in the pleadings, it doesn’t make any practical difference because we have always sought that declaration and that declaration would have had the same implication for the council’s interests. Whether or not it’s a step in the process or something that’s arrived at in its own right.

  1. The understanding of the parties and the deficiency in the pleadings was raised in opening and notwithstanding such concerns being brought to the Applicant’s attention no application was made to further amend the Summons until well into the second day of hearing after the evidence had closed and the Applicant had proceeded to its closing submissions.

  2. I do not consider this to be a mere matter of pleading niceties. The issue of the validity of the CCKPOM generally, unrelated to the Consent, has the potential to have real consequences and engage new and fresh considerations relating to the discretion as it pertains to the particular consent holder and then to understand the potential impact on other persons, presently not parties to these proceedings. Further, the Respondents have pleaded certain defences that, if accepted, would obviate the need for a determination of the validity of the KPOM in the circumstances of this development consent. By amending the pleading, this defence and forensic decisions made, including the necessity of persons to be advised of the terms of the amendment proposed have been unable to be properly considered due to the extremely late raising of the validity of the KPOM as a matter independent of the development consent.

  3. The proceedings were brought to challenge this development consent and not to raise broader issues relating to the KPOM beyond the scope of that consent. In the circumstances I will not allow a further amendment with the potential for possible far-reaching implications.

  4. My determination to refuse the leave sought has, by these reasons, been reinforced. The leave relied upon to raise the validity of the CCKPOM in the context of these proceedings required an extension of time, which for the reasons outlined above, was refused. This amendment would also have required the same extension which would have been refused for the same reasons. Further, as the Land had Biodiversity Certification, the validity of the CCKPOM does not relevantly arise for consideration in the context of the claims pleaded. To permit the amendment would have required a consideration of the validity of the CCKPOM generally, being quite a distinct exercise than one that related to the validity of the Consent and, therefore, could not be said to be merely another way of raising and determining the same issue of validity.

Costs

  1. At the conclusion of the hearing, as no party had addressed me in relation to the question of costs, it was requested that I reserve costs. I will make such an order.

Conclusion and orders

  1. For the reasons outlined, the Applicant has not succeeded on any of the grounds raised by it in the Second Further Amended Summons and, therefore, has not established any reason that would warrant a finding that the Consent was invalidly granted. Accordingly, the Second Further Amended Summons must be dismissed.

  2. The Court orders that:

  1. The Applicant’s Second Further Amended Summons filed on 26 April 2021 is dismissed;

  2. The costs of the proceedings are reserved; and

  3. The exhibits are to be returned. Parties are to collect the exhibits from my Associate within 7 days.

  1. The Court directs that:

  1. The proceedings are listed for mention before me at 9am on Friday, 8 October 2021 for the purpose of making any further directions and the fixing of a further date for the determination of costs; and

  2. Should the parties or any of the parties agree as to an appropriate order for costs they have liberty to provide short minutes of order evidencing such agreement to my Associate, which orders will be made in chambers and those parties will be excused from attendance at the mention in (1) above.

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Decision last updated: 24 September 2021

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