Shellharbour City Council v Minister for Planning
[2012] NSWLEC 29
•29 February 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Shellharbour City Council v Minister For Planning [2012] NSWLEC 29 Hearing dates: 25, 26 July 2011 Decision date: 29 February 2012 Jurisdiction: Class 4 Before: Craig J Decision: 1. Summons dismissed.
2. Costs reserved.
3. Should any party seek an order for costs against another party or parties, short written submissions supporting the order sought must be provided to my Associate and to the other parties within 21 days from the date of this order.
4. A party against whom an order for costs is sought must within 14 days from receiving the written submissions referred to in order 3, provide to my Associate and to the other parties, short written submissions in response.
5. A party who has sought costs and received written submissions in accordance with order 4, may within seven days from the date of receiving those submissions, provide to my Associate and the other parties a brief written submission in reply.
6. Exhibits may be returned.
Catchwords: ENVIRONMENT AND PLANNING: judicial review - concept plan approval under s 75O of the Environmental Planning and Assessment Act 1979 - power constrained by cl 8N of the Environmental Planning and Assessment Regulation 2000 - constraint imposed by reference to land identified in a planning instrument as being of "high biodiversity significance" - definition in State Environmental Planning Policy (Major Projects) 2005 - principles of interpretation - necessity for certainty by identification of land in an environmental planning instrument ― land identified as an "area of high conservation value" in Shellharbour Rural Local Environmental Plan 2004 - land so identified not synonymous with land being "of high biodiversity significance" - concept plan approval not constrained by cl 8N Legislation Cited: Civil Procedure Act 2005, s 98
Environmental Planning and Assessment Act 1979, Pt 3A, s 71I(2)(a), 75O, 75R
Environmental Planning and Assessment Regulation 2000, cl 8N(1)
Evidence Act 1995, s 136
Fisheries Management Act 1994, s 194(1)
Interpretation Act 1987, s 34
Protection of the Environment Administration Act 1991, s 6(2)
Shellharbour Rural Local Environmental Plan 2004, cl 36
State Environmental Planning Policy (Major Projects) 2005, Sch 3, cl 3, cl 7
State Environmental Planning Policy No 14 - Coastal Wetlands
Threatened Species Conservation Act 1995, s 47
Uniform Civil Procedure Rules 2005, r 42.1Cases Cited: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380
Shellharbour City Council v Minister for Planning [2011] NSWCA 195
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198Category: Principal judgment Parties: Shellharbour City Council (Applicant)
Minister For Planning (First Respondent)
Delfin Lend Lease Limited (Second Respondent)Representation: Mr T Robertson SC with Mr J E Lazarus (Applicant)
Ms K Richardson with Mr A Shearer (First Respondent)
Mr N J Williams SC with Ms A M Mitchelmore (Second Respondent)
Sparke Helmore Lawyers (Applicant)
Department of Planning, Legal Branch (First Respondent)
Allens Arthur Robinson Lawyers (Second Respondent)
File Number(s): 40183 of 2011
Judgment
The permanent population of the Illawarra Region of New South Wales has been increasing over recent years. Population growth is expected to continue. To address the future housing needs of this population, strategy documents and studies prepared by the New South Wales Government in and since 2006 have identified non-urban land areas within the Region appropriate for future residential development.
One such area is the Calderwood Valley, located south-west of Wollongong and west of the town of Shellharbour. It is an area that is presently rural in character.
Delfin Lend Lease Limited ( DLL ), the second respondent, has sought to translate the land use strategy for residential development in this area into actuality. In 2009, it proposed that some 700 hectares of the Calderwood Valley be rezoned to allow urban development to be undertaken. Ultimately, its proposal came to be accepted. On 8 December 2010, the Minister for Planning granted concept plan approval for what is known as the Calderwood Project.
Shellharbour City Council ( the Council ) challenges the validity of the Minister's concept plan approval. It does so on the single ground that the Minister lacked power to grant the approval because of the provisions of cl 8N(1) of the Environmental Planning and Assessment Regulation 2000 ( the Regulation ).
In order to understand the Council's challenge, it is necessary to consider not only the provisions of cl 8N of the Regulation but also the statutory and regulatory context that founds the proper interpretation of those provisions. However, before turning to the task of interpretation, it is appropriate to identify the factual context in which the Minister's approval came to be given.
Concept plan approval is sought
In February 2009, DLL made application for the Minister to consider the proposed rezoning and urban development of the Calderwood Project site as a major project to which the provisions of Pt 3A of the Environmental Planning and Assessment Act 1979 ( the EPA Act ) applied. The application also sought the identification of the site as a State significant site under Sch 3 to State Environmental Planning Policy (Major Projects) 2005, as that Policy was then named ( the Major Projects SEPP ).
That application was successful. On 16 April 2009 the Minister recorded the formation of the opinion that the development project proposed by DLL was a major project to which the provisions of the Major Projects SEPP applied. On that same day the Minister also formed the opinion that the Calderwood Project was one to which Pt 3A of the EPA Act applied, with the consequence that DLL was authorised to submit a concept plan for the project under Pt 3A. DLL was also requested to undertake a study to determine whether the Calderwood Project site ( the Calderwood Site ) should be listed as a State significant site in Sch 3 to the Major Projects SEPP.
An application for concept plan approval was submitted to the Department of Planning on 8 March 2010. This application was accompanied by a detailed report referred to as both a State Significant Site Study and an Environmental Assessment Report. Concept plan approval was sought to facilitate development that comprised:
(i) approximately 4,800 residential dwellings;
(ii) approximately 50 hectares of mixed-use land for a range of retail, commercial and light industrial uses;
(iii) open space and provision for protection of environmentally significant lands; and
(iv) internal roads, service infrastructure and community facilities.
The application was publicly exhibited for a period of almost two months. The exhibition included not only the reports addressing the development elements that I have just described and their perceived environmental impact, but also the material sought to support the inclusion of the Calderwood Site as a State significant site under the Major Projects SEPP. Following exhibition, submissions received by the Department of Planning were considered and further reports required from DLL. Ultimately, the application was submitted to the Minister in November 2010, accompanied by an Environmental Assessment Report prepared by the Director-General, as was required by s 75I(2)(a) of the EPA Act.
As earlier recorded, approval to the concept plan application was given by the Minister on 8 December 2010 ( the Concept Plan Approval ). That Approval was given subject to a number of conditions, including conditions that modified the proposal submitted by DLL. On the same date the Minister recommended that the Major Projects SEPP be amended by including the Calderwood Site as a State significant site in Sch 3 to the Major Projects SEPP.
Planning controls
The Calderwood Site straddles the boundary between the local government areas of Wollongong and Shellharbour. Approximately 107 hectares of the Site area are within the Wollongong local government area. This portion of the site is not of present relevance. It is the remaining 593 hectares that are within the Shellharbour local government area upon which it is necessary to focus in order to determine the present proceedings.
When the Concept Plan Approval was given by the Minister in December 2010, development upon the Site within the Shellharbour local government area was, for present purposes, controlled by Shellharbour Rural Local Environmental Plan 2004 ( the LEP ). The zoning map identified in the LEP shows the majority of the Calderwood Site to be zoned "1 (a) Agriculture" while other pockets of land within the Site area are zoned "7 (n) Nature Conservation". Land use controls contained in the LEP for each of those zones generally prohibited urban development of the kind intended by the Concept Plan Approval, including houses on lots of less than 40 hectares in area.
Because of its importance in the determination of this case, it is necessary to notice cl 36 of the LEP. It contains provisions directed to the carrying out of development in an "area of high conservation value". That phrase is defined in the Dictionary to the LEP to mean an area coloured beige on the "Areas of High Conservation Value Map" ( the Conservation Map ). That map shows areas coloured beige within the Calderwood Site.
Clause 36 provides:
" 36 Areas of high conservation value
(1) Environmental management objectives
The environmental management objectives of this clause are:
(a) to require certain environmental issues to be considered before development is carried out on land within an area of high conservation value, and
(b) to retain bushland in parcels of a size and configuration which will, as far as possible, enable the native flora and fauna species and communities to survive in the long term, and
(c) to maintain and, where appropriate, revegetate habitat corridors between remnant areas of bushland, and
(d) to ensure that any development adjacent to, adjoining or within a watercourse or wetland does not adversely impact on water quality, the natural hydrological regime or habitat value, and
(e) to ensure that any development adjacent to, adjoining or within a riparian corridor conserves or enhances the aquatic and native vegetation of the riparian corridor, and
(f) to protect bushland and existing landforms for their scenic values, and
(g) to retain the unique visual identity of the landscape.
(2) Is consent required?
A person shall not carry out development, including the clearing of land, in an area of high conservation value except with development consent.
(3) What must be included in an assessment by the consent authority
Before granting consent for development of land allowed to be carried out with consent by Part 2, the consent authority must consider the following:
(a) the impact of the proposal on the habitat value of vegetation within riparian corridors and wildlife corridors or links,
(b) the potential for undertaking environmental conservation works to enhance the biodiversity values of the land, including the potential for rehabilitation works of degraded habitats or breaks in riparian corridors or wildlife corridors or links,
(c) whether the design and construction of any proposed fencing minimises possible limitation of fauna movement,
(d) whether provision has been made for the planting of appropriate native plant species on the land where the planting would visually screen the development or contribute to the restoration or enhancement of riparian and wildlife corridors or links.
(4) What must the consent authority be satisfied about before granting consent?
Consent must not be granted to development of land in an area of high conservation value unless the consent authority is satisfied that:
(a) the development has been designed to minimise disturbance to native vegetation communities, and
(b) opportunities to restore or enhance the biodiversity values of the land, including riparian corridors and wildlife corridors or links, have been considered.
(5) The consent authority may decline to consent to development of land in an area of high conservation value until it has considered a site plan of an appropriate scale clearly and accurately showing the boundary of any vegetation edge and stands of remnant vegetation on the subject land to enable it to properly assess the impact of the proposed development on that vegetation and the biodiversity it supports."
Clause 8N of the Regulation and its statutory context
The power of the Minister to give approval to a concept plan application is found in s 75O(1) of the EPA Act, a section contained within Pt 3A of that Act. Although that Part of the EPA Act has since been repealed, its provisions remain relevant to the determination of the present proceedings. The power to grant concept plan approval in accordance with subsection (1) of s 75O is circumscribed by the provisions of subsection (3). The latter subsection provides:
"(3) In deciding whether or not to give approval for the concept plan for a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for a concept plan for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit."
The second sentence of s 75O(3) is important to be noticed in the context of the present dispute. It is that sentence which necessitates reference to cl 8N of the Regulation. However, before turning to that clause it is important to notice the provisions of s 75R(3) of the EPA Act which provide:
"(3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project."
The latter subsection, read with the first sentence of s 75O(3), has the effect of removing the restrictions or prohibitions of a local environmental plan, as they relate to development of land that is the subject of a project approval, including land that is the subject of a concept plan approval. Relevantly, both the prohibitions and constraints upon development found in the LEP did not, by operation of s 75R, prevent the Concept Plan Approval being granted and the development contemplated by it being carried out.
That observation is subject to the operation of cl 8N(1) of the Regulation which provides:
" 8N Projects or concept plans for approval may not be given concerning environmentally sensitive land or sensitive coastal locations
(1) For the purposes of sections 75J(3) and 75O(3) of the Act, approval for a project application may not be given under Part 3A of the Act for any project, or part of a project, that:
(a) is located within an environmentally sensitive area of State significance or a sensitive coastal location, and
(b) is prohibited by an environmental planning instrument that would not (because of section 75R of the Act) apply to the project if approved.
(2) To avoid doubt, a project is not prohibited for the purposes of subclause (1)(b) if:
(a) it is not permitted because of the application of a development standard under the environmental planning instrument, or
(b) it is prohibited under the environmental planning instrument but is permitted to be carried out because of the application of another environmental planning instrument to the environmental planning instrument.
(3) In this clause:
environmentally sensitive area of State significance has the same meaning as it has in State Environmental Planning Policy (Major Development) 2005 .
sensitive coastal location has the same meaning as it has in State Environmental Planning Policy (Major Development) 2005 .
In order fully to understand the provisions of cl 8N(1), it is necessary to refer to the definition of the phrase "environmentally sensitive area of State significance" found in the Major Projects SEPP. Included in cl 3(1) of that Policy is the following definition:
"3 Definitions and key concepts
(1) In this Policy:
...
environmentally sensitive area of State significance means:
(a) coastal waters of the State, or
(b) land to which State Environmental Planning Policy No 14 - Coastal Wetlands or State Environmental Planning Policy No 26 - Littoral Rainforests applies, or
(c) land reserved as an aquatic reserve under the Fisheries Management Act 1994 or as a marine park under the Marine Parks Act 1997 , or
(d) land within a wetland of international significance declared under the Ramsar Convention on Wetlands or within a World heritage area declared under the World Heritage Convention, or
(e) land identified in an environmental planning instrument as being of high Aboriginal cultural significance or high biodiversity significance, or
(f) land reserved as a State conservation area under the National Parks and Wildlife Act 1974 or
(g) land, places, buildings or structures listed on the State Heritage Register, or
(h) land reserved or dedicated under the Crown Lands Act 1989 for the preservation of flora, fauna, geological formations or for other environmental protection purposes, or
(i) land identified as being critical habitat under the Threatened Species Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994 .
The applicant's case
In essence, the Council submits that cl 8N(1) denied to the Minister the power to give the Concept Plan Approval because the Calderwood Site is within an "environmentally sensitive area of State significance", as that expression is defined in the Major Projects SEPP. It submits that paragraph (e) of the definition applies to the Calderwood Site because it is land, part of which is of high biodiversity significance. The land having that attribute is so identified by the land coloured beige on the Conservation Map referred to in the LEP.
The Council accepts that, as a matter of nomenclature, land described as an "area of high conservation value" is not necessarily synonymous with land described as "being of ... high biodiversity significance". Further, it is accepted that none of the provisions of the LEP ascribe to any land to which it relates the description "high biodiversity significance".
However, the Council argues that upon the proper construction of the LEP, areas coloured beige on the Conservation Map are, in substance, areas of high biodiversity significance. Support for that contention is founded upon a number of provisions of the LEP, particularly cl 36 and several definitions found in the Dictionary to that instrument. The definitions upon which reliance is placed are those that refer, in terms, to a document entitled " Nature Conservation Study " dated June 2000 and prepared by Kevin Mills & Associates ( the Mills Study ). The Council says that by reference to the Mills Study, the high biodiversity significance of the areas coloured beige on the Conservation Map, as those areas relate to the Calderwood Site, can be determined.
The first of the provisions upon which the Council relies in order to sustain its argument is cl 7 of the LEP. Subclause (1) of that clause imposes a general obligation upon the Council, as the consent authority under the LEP, to consider whether any particular development will be ecologically sustainable. The expression "ecologically sustainable development" is defined in the dictionary to the LEP and for that purpose draws upon the principles described in s 6(2) of the Protection of the Environment Administration Act 1991 . Subclause (2) of cl 7 of the LEP relevantly requires that development consent not be granted unless the Council is satisfied that the carrying out of development will be consistent with achievement of the ecologically sustainable development goals stated in Sch 1 to the LEP.
That Schedule addresses those goals under a number of heads that include not only "Biodiversity" and "Wildlife habitats" but also "Cultural heritage", "Settlement", "Mineral extraction" and "Tourism". Different goals in respect of each of those heads are stated. Those goals are expressed to range from enhancement of "valuable natural environments, including ... areas of high conservation value" to the careful management of extractive industry so as to avoid "rendering important mineral resources unavailable for future possible extraction". The goal in respect of tourism is the promotion of tourism and recreational opportunities which "preserve natural areas, heritage values and landscapes."
For my part, the provisions of cl 7 of the LEP and Sch 1 do not aid the process of interpretation in the manner for which the Council contends. The provisions of the clause itself, identifying a level of consideration or satisfaction required when considering any particular proposal for permissible development, together with the diversity of goals and the manner in which they are to be addressed by reference to Sch 1, do not advance the identification of land in the LEP as being of "high biodiversity significance".
The provision of the LEP on which the Council places considerable reliance is cl 36. It is the clause that addresses an "area of high conservation value", being those lands coloured beige on the Conservation Map. Particular emphasis is placed upon subclause (4). The subclause prohibits the grant of development consent unless the consent authority is satisfied that:
"(a) the development has been designed to minimise disturbance of native vegetation communities, and
(b) opportunities to restore or enhance the diversity values of the land, including riparian corridors and wildlife corridors or links, have been considered."
As I understand the Council's submission, it relies upon this subclause to demonstrate the biodiversity significance of land that is coloured beige on the Conservation Map.
The expression "wildlife corridors or links", as used in cl 36(4), is defined in the Dictionary to the LEP as follows:
" wildlife corridors or links means an area or network of areas of native vegetation or habitat that enables migration, colonisation or interbreeding of plants and animals between two or more larger areas of habitat. Wildlife corridors or links include stands or disbursed areas of vegetation which may be used by wildlife to move from one area to another, for habitat or foraging. Wildlife corridors include, but are not limited to, those areas identified in the Nature Conservation Study , prepared by Kevin Mills & Associates, dated June 2000, and available at the office of the Council."
Within the Mills Study there is no map or plan that purports to identify, in terms, an area or areas as "wildlife corridors or links". There are figures or maps that appear within parts of the Study dealing with conservation areas and in which the ecological value of those areas is discussed. Bushland corridors and riparian corridors are distinguished one from the other and categorised according to whether Mills considered them to be regional, subregional or local in importance.
The Council refers to the Mills Study as an aid to determining the purpose for which lands were coloured beige on the Conservation Map. It submits that the Concept Plan Approval was for residential and commercial development to take place on parts of the Calderwood Site which fall within the areas coloured beige on the Conservation Map. By reference to the Mills Study, it should be concluded that apart from being described as "areas of high conservation value" those areas were, in substance, areas of high biodiversity significance. As a result the Minister was not lawfully able to give the Concept Plan Approval.
Although, as the matter was initially pleaded, the Council had asserted that all areas coloured beige on the Conservation Map were, in substance, areas of high biodiversity significance, its position was refined in final submissions to limit the basis of its challenge to only part of the Calderwood Site as I have sought to summarise in the preceding paragraph. The area within the Calderwood Site that is the subject of the submission of the Council is a dog-leg shaped area hatched on the plan tendered as Exhibit C. A copy of that plan is annexure "A" to this judgment.
I should record that the Council tendered the Mills Study over objection from both the Minister and DLL. Receipt of the Study into evidence for all purposes was objected to by the respondents on the basis that it was irrelevant to the proper interpretation of the statutory and regulatory provisions upon which the Council founded its case. However, they acknowledged that the Study was identified in several definitions found within the Dictionary to the LEP. On this basis, the respondents submitted that receipt of the Study into evidence should be limited by an order made under s 136 of the Evidence Act 1995, confining its use to complete those definitions contained within the LEP which refer to the Study by name. I acceded to the respondents' submissions and made an order under s 136 to that effect.
Clause 8N of the Regulation interpreted
In order to sustain its challenge to the Minister's decision to give the Concept Plan Approval, it is necessary for the Council to establish that upon the proper construction of cl 8N(1) of the Regulation, the land coloured beige on the Conservation Map, as it relates to the Calderwood Site, is land identified in the LEP as being of high biodiversity significance. The definition of "environmentally sensitive area of State significance" found in the Major Projects SEPP requires that to be the case.
For reasons that follow, I do not accept that the site has been so identified. The interpretation for which the Council contends is not the consequence of direct application of the language of the provision; it is not the consequence of the statutory and regulatory context and it does not appear to me to be the consequence of a purposive construction of the provision.
The definition of "environmentally sensitive area of State significance"
The Council relies on paragraph (e) of the definition of "environmentally sensitive area of State significance" as expressed in cl 3(1) of the Major Projects SEPP. The restriction upon the grant of project approval expressed in cl 8N(1) is directed to a project or any part of that project located within an "area" as defined. Paragraph (e) of that definition adds an element of particularity to the location of the affected "area" by requiring that the land be "identified" in the planning instrument as possessing the quality to which the definition refers.
The phrase "land identified in an environmental planning instrument as being of ... high biodiversity significance" does not seem to me to attract uncertainty as to its meaning. Its command is clear. Land being of the requisite quality must be identified in an environmental planning instrument, in this case the LEP, in order to engage its provisions. Those words require no gloss or expansion and are capable of application according to their plain terms. As Gibbs CJ stated in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304-305 (omitting citations):
"It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed in the words used": River Ware Commissioners v Adamson. It is only by considering the meaning of the words used by the legislature that the Court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v JH Nelson Pty. Ltd. ... . If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking "nothing remains but to give effect to the unqualified, words": Metropolitan Gas Co v Federated Gas Employees' Industrial Union . There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the cannons of construction are not so rigid as to prevent a realistic solution in such a case ... However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust."
In an endeavour to construe the LEP as engaging paragraph (e) of the environmentally sensitive area definition, the Council contends that the words "being of high biodiversity significance" mean "having in substance or in nature or signifying high biodiversity significance". The defined expression requires no recasting in this manner in order to understand its meaning and to give effect to it.
In the present case, it is necessary to ask whether the LEP itself identifies land that is of high biodiversity significance. It is accepted that it does not, in terms, do so. While it may be that it is not necessary to find the precise phrase "high biodiversity significance" in the LEP, an appropriate synonym would be necessary. As DLL submitted, a phrase such as "critical biodiversity area" might suffice, if used in an environmental planning instrument to identify land. However, it would not accord with the language of the definition to require an examination of other material in an attempt to discern whether the descriptor that is used in the instrument identifies land possessing the requisite quality. It is to be remembered that the land so identified must not only be of biodiversity significance but it must be of "high" biodiversity significance. Relevantly, that specific quality in respect of identified land must be made apparent by the provisions of the LEP.
The Council's point of reference in this context is the Conservation Map which, in turn, is the means by which the phrase "areas of high conservation value" as used in the LEP, is defined. That term is not a synonym for land identified as being of high biodiversity significance. The qualities that cause areas of high conservation value to be so described are not stated in the LEP. As I have endeavoured to make clear, the phrase "areas of high conservation value" is defined only by reference to marking of the colour beige on the Conservation Map. Areas so coloured by reference to that Map then trigger the operation of cl 36 of the LEP which requires that development on land so identified be subject to a specified level of planning constraint, requiring consideration of particular matters or qualities in a proposed development before consent can be granted. While those constraints include consideration of the biodiversity value of the land in question, the requirement for such a consideration does not categorise the land so identified as being of high biodiversity significance.
Context of the defined expression
The immediate context in which to consider the meaning of paragraph (e) of the definition of "environmentally sensitive areas of State significance" are the other paragraphs contained within that definition. Each of them is directed to land having different qualities or serving different functions. Each paragraph in that definition is precise in that the quality or attributes which the land must have is readily ascertainable from or by reference to the statute, statutory instrument or other record identified in that paragraph. By reference to paragraph (b), land to which State Environmental Planning Policy No 14-Coastal Wetlands applies is readily ascertainable from the series of maps identified in cl 3 of that Policy. Likewise, land referred to in subparagraph (c) as being reserved as an aquatic reserve under the Fisheries Management Act 1994 is readily ascertainable by reference to the Minister's declarations under s 194(1) of that Act. Examples need not be multiplied.
However, paragraph (i) of the definition does need to be considered. The manner in which that that paragraph is expressed is similar to the manner of expression in paragraph (e). The opening words "land identified" and the phrase "as being" are used in each of those two paragraphs. In paragraph (i) land identified as being critical habitat under the Threatened Species Conservation Act 1995 is readily ascertainable by reference to a declaration made by the Minister under s 47 of that Act. The land to which the paragraph refers is therefore capable of precise identification.
If the interpretation of paragraph (e) for which the Council contends is correct, it would stand alone from the other paragraphs within the definition. It would require an evaluative judgment to be made of the provisions of the planning instrument in order to determine whether the provisions of cl 8N(1) were engaged. Expressed in terms of principle, that judgment would render it necessary to determine whether land identified in a planning instrument as having a particular attribute or character which attracts the operation of the provisions of that instrument, impliedly possesses a further characteristic, not identified by the terms of the statutory instrument but which, if possessed, attracts separate and unique regulatory control imposed by a different statutory instrument. The need to approach the interpretation of the paragraph in this manner would be the antithesis of the precision with which the other paragraphs of the definition enable land to be identified.
I am of the opinion that the Council's approach ought not be accepted. Identification of the land, being of the requisite quality within the planning instrument, is required and that identification, in turn, requires precision. The context requires that land possessing the attribute of high biodiversity significance be identified, as such, in the provisions of the applicable environmental planning instrument. This identification must be at a level of particularity and certainty that is made apparent by the provisions of the planning instrument itself.
Purpose served by the definition
In my summary of the background facts, I have recorded the Minister's opinion, formed in April 2009, that the Calderwood Project was one to which the provisions of Pt 3A of the EPA Act applied. The basis expressed for this opinion was that the Project was development of a kind described in Sch 1 to the Major Projects SEPP, namely development described in cl 13 of Sch 1, being development "for the purpose of residential, commercial and retail projects" with a nominated capital investment value. So much is recorded in the Minister's opinion.
The regulatory foundation for the formation of this opinion is cl 6 of the Major Projects SEPP. Subclause (1) of that clause relevantly provides:
" 6 Indentification of Part 3A projects
(1) Development that, in the opinion of the Minister, is development of a kind:
(a) that is described in Schedule 1 or 2, or
...
is declared to be a project to which Part 3A of the Act applies."
Reference to the Major Projects SEPP indicates that, apart from cl 3(1), the phrase "environmentally sensitive area of State significance" is otherwise used only in the description of various forms of development identified in Sch 1 to that Policy. Thus, the sole purpose it serves is the identification of an aspect of development that is able to be declared to be a project under Pt 3A of the EPA Act pursuant to cl 6(1) of the Policy. By way of example, cl 2 of Sch 1 identifies "aquaculture" as a potential form of development that has the following elements or characteristics:
"(1) Development that employs 20 or more people for the purpose of aquaculture.
(2) Development for the purpose of aquaculture located in environmentally sensitive areas of State significance.
... "
Likewise, cl 5 of Sch 1 identifies mining that "is in an environmentally sensitive area of State significance" as being development that may be declared to be a project under Pt 3A.
The Major Projects SEPP is a gateway instrument to the operation of Pt 3A of the EPA Act. The identification of classes of development that may be declared to be such projects is undertaken with some precision. This is understandable given the regime for project assessment under Pt 3A once a declaration is made that a project is one to which the Part applies. Therefore, it is appropriate to regard one of the defined aspects of development to which the provisions of the Part may apply as one being expressed with some precision.
Land having the quality identified in paragraph (e) ought to be readily ascertainable from the environmental planning instrument without recourse to evaluative judgments of the kind for which the Council contends. The necessity for such judgment would not accord with the purpose for which the definition was inserted in the Major Projects SEPP and would not, therefore, serve the purpose intended by cl 8N(1) of the Regulation. The purpose of each must be seen to be a single purpose of clarity and certainty in identification of land that is engaged by the definition.
Clause 36 of the LEP: identification of land as being of high biodiversity significance?
The provisions of cl 36 of the LEP are central to the Council's case. In essence, the Council argues that the provisions of cl 36 make good its submission that the Conservation Map identifies, in substance, land within the site as being of high biodiversity significance. I have earlier quoted the provisions of cl 36 in full. It is the only clause in Div 1 of Pt 3 of the LEP which is headed "Areas of high conservation value". The environmental management objectives of the clause are stated in subclause (1). Those objectives are diverse, with each objective being followed by the conjunctive "and". They not only include a number of ecological objectives but also include protection of bushland and landforms "for their scenic values" (paragraph (f)) and retention of "the unique visual identity of the landscape" (paragraph (g)). None of these environmental management objectives make reference to "biodiversity".
The absence of any reference to biodiversity in cl 36(1) is to be contrasted with other provisions of the LEP. Clause 28(1) sets out the objectives of the 7 (n) Nature Conservation Zone. Paragraph (b) of the subclause expresses an objective of encouragement of "habitat restoration on cleared land in the zone and rehabilitation activities that enhance the biodiversity values of the escarpment, foothills, riparian corridors, wetlands and wildlife corridors or links". Pockets of the Calderwood Site fall within this zone.
Subclause (3) of cl 36 identifies those matters that are to be considered by the Council before granting consent to the development of land coloured beige on the Conservation Map. Paragraph (b) of the subclause requires consideration of "the potential for undertaking environmental conservation works to enhance the biodiversity values of the land, including the potential for rehabilitation works of degraded habitats ... ". The requirement to consider enhancement of biodiversity values that include potential rehabilitation works of degraded habitats does not seem to me to be synonymous with identification of land as " being of ... high biodiversity significance" (emphasis added).
Equally, the matter mandated for consideration by paragraph (d) of cl 36(3) does not support the interpretation for which the Council contends. That paragraph is directed to two matters. Although the topic is the planting of native plant species, the purpose of that planting is expressed to be either to screen development, apparently to assist in the visual appreciation of the area, or to contribute to restoration or enhancement of riparian and wildlife corridors or links. "Restoration" suggests the need to revive or re-establish corridors or links that may once have existed while "enhancement" suggests action that improves upon existing corridors or links. Neither concept, in the ordinary use of language, identifies land as being of high biodiversity significance.
As I have already indicated, the subclause of cl 36 upon which the Council places most emphasis is subclause (4). It is appropriate to repeat in full the provisions of that subclause:
(4) What must the consent authority be satisfied about before granting consent?
Consent must not be granted to development of land in an area of high conservation value unless the consent authority is satisfied that:
(a) the development has been designed to minimise disturbance to native vegetation communities, and
(b) opportunities to restore or enhance the biodiversity values of the land, including riparian corridors and wildlife corridors or links, have been considered."
Paragraph (a) is not necessarily concerned with biodiversity. Minimising disturbance to native vegetation communities can serve a number of environmental objectives, including maintenance of existing character and preservation of natural landscape vistas.
While paragraph (b) of subclause (4) does make reference to "the biodiversity values of the land", it does so in the context of restoration or enhancement of those values. I have already addressed the qualification which each of the verbs "restore" and "enhance" impose upon the activity to which they are directed, in this case the biodiversity values of the land identified on the Conservation Map.
In the context of paragraph (b), the chapeau to subclause (4) must also be recognised. While it is undoubtedly correct to observe that one of the objects of the paragraph is to direct attention to the biodiversity values of the land identified on the Conservation Map when determining an application for permissible development on that land, the clause requires only that the Council, as consent authority, be satisfied that opportunities for restoration or enhancement have been considered.
Neither the provisions of subclause (4) nor the provisions of cl 36, read as a whole, lead to the conclusion that land identified on the Conservation Map is land "being of ... high biodiversity significance". Clause 36(1) expresses mixed objectives for environmental management and the provisions of the clause must be construed in that light. Even accepting that an object of the clause is to require consideration of the biodiversity of the land expressed as being of high conservation value, the clause cannot reasonably be construed as identifying the land to be of high biodiversity significance. The adjectival qualification of the biodiversity significance imposed by the definition in cl 3 of the Major Projects SEPP cannot be ignored. That qualification, requiring the biodiversity significance to be "high", must be made apparent by the terms of the environmental planning instrument.
The Mills study does not assist the Council
I have referred to the ruling made by me as to the limited basis upon which the Mills Study was admitted into evidence. In accordance with that ruling, reference to it was limited to complete the meaning of those definitions contained in the LEP that made reference to the Study. There are seven such definitions. However, the only phrase defined in the LEP that makes reference to the Mills Study and which finds expression in cl 36 is the definition of "wildlife corridors or links". The defined expression in that clause provides the only link within the LEP between the Mills Study and the Conservation Map.
I have earlier set out the definition of "wildlife corridors or links". It will be noticed from the definition that such corridors or links are not confined to those areas "identified" in the Mills Study. The definition describes the attributes that land must have so as to be comprehended by the definition. That circumstance speaks against the certainty or precision to which I have earlier referred as being required by paragraph (e) of the definition of "environmentally sensitive area of State significance". Identification of any given area of land described in that general manner calls for judgment about which informed minds might reasonably differ.
There are no wildlife corridors, identified as such, in the Mills Study. However, there is one map that may be seen as a identifying potentially relevant corridors. The map is figure 7 in the Study and is titled "Proposed Local Bushland Corridors in the City of Shellharbour". Identification of land in that manner does not, to my mind, identify land that meets the biodiversity quality required by the requisite definition. Even applying the more detailed qualities of land within the definition of "wildlife corridors or links" that precede reference to the Mills Study, that does not ascribe to the corridors identified in figure 7 the quality of biodiversity significance required by the definition in the Major Projects SEPP ( Shellharbour City Council v Minister for Planning [2011] NSWCA 195 at [24] - [25]).
The remaining six definitions within the LEP that make reference to the Mills Study do not appear to me to add further to the Council's submission. They are not definitions that, in terms, are directed to the identification of land as being of high biodiversity significance by reference to the Conservation Map.
In support of its submissions, the Council seeks to extend references found in the Mills Study necessary to identify land in any one of the seven definitions by relying upon text within that Study to support the biodiversity significance of land within the Calderwood Site. In particular, the Council sought to rely upon that part of the text directed to the bushland corridors identified in that Study. As the respondents submitted, resort to the text in this manner involves an attempt to use the Study for a purpose beyond the limited purpose for which it was admitted into evidence.
In my opinion, the respondents are correct. The effect of my ruling is that resort cannot be had to the Study for the purpose of expanding upon the terms of the definitions in the LEP. The explanation by the author of the Study as to why areas were given a particular designation cannot be material intended to be incorporated by reference into the LEP, a statutory instrument, at least in the absence of clear words to that effect. While reference to the Mills Study for the limited purpose of completing the meaning of expressions defined in the LEP is necessary, the Study text is otherwise extrinsic to the statutory instrument and provides no acceptable basis to aid the process of interpretation (s 34 Interpretation Act 1987; Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380).
Even if I be wrong in ruling against use of the text of the Mills Study to elaborate upon or to be included within the definition of "wildlife corridors or links" in the LEP, my conclusion as to the meaning and operation of the respective definitions to which I have referred does not change. This statement requires brief explanation.
The Mills Study, which preceded the making of the LEP by some four years, distinguishes among three types of corridors, dependant upon "their importance and size". That distinction leads to their categorisation as being regional, subregional or local (at p 138). As is the case in respect of other parts of the Mills Study, that distinction is not one reflected by the provisions of the LEP.
This classification of bushland corridors is preceded by discussion in the Study of both "conservation areas" and "habitat corridors". Core conservation areas are described, as are their attributes or values. They are described as having both nature conservation values and "important scenic landscape qualities" (p 132).
The Study identifies the provision of wildlife habitat corridors as being an "important conservation objective in rural and urban areas" (at p 137). Those corridors are recognised as being of two types, namely "bushland corridors and riparian corridors" (at p 138). Four values of bushland corridors are described, one of the four being addition "to the scenic quality of rural landscapes."
In the present case, the only bushland corridor that is potentially relevant is that described in the Study as a "local bushland corridor". It will be recalled that the title block to figure 7 in the Study so described the areas indicated by arrows on that figure. One such arrow passes through the Calderwood Site in an area that is intended for urban development. The text describing the local bushland corridors includes the following (at p 139):
"Some of the local corridors are not continuous, because the native vegetation has been cleared. These cleared areas within the corridors are referred to as bushland enhancement areas; see Section 4.6. While there is no legal requirement for land owners to revegetate or protect these areas, owners should be encouraged to revegetate them."
The text of section 4.6 of the Study indicates that it is "beyond the scope of this report to map the enhancement areas".
The area of bushland corridor shown in figure 7 of the Study as being within the Calderwood Site comprises an area that, in the words of the text at p 139, "are not continuous" because native vegetation has been cleared. Where, within that corridor, there are existing stands of native vegetation within the 7 (n) Nature Conservation Zone, they are not located on those parts of the Site intended to be disturbed by development contemplated in the Concept Plan Approval.
The designation of the corridor as a "local bushland corridor", the presently disturbed and discontinuous nature of that corridor, together with the absence of any recommendation within the Study for the mandatory taking of steps to preserve these corridors because of their perceived biodiversity significance, are all factors that speak strongly against those areas within the Site coloured beige on the Conservation Map as being land of "high biodiversity significance". At best, the text of the Study as it relates to corridors of that description contains only aspirational encouragement for landowners to consider action to improve the potential for continuity of corridors to serve purposes that include biodiversity.
Conclusion
Having regard to the basis upon which the Council challenges the validity of the Concept Plan Approval, it is not the function of the Court in these proceedings to consider, let alone determine, the merits of the Minister's determination to grant Concept Plan Approval for the Calderwood Project. The only decision which this Court is called upon to make is whether the Minister had power under the EPA Act and the Regulation to grant Concept Plan Approval.
The Minister's power to grant Concept Plan Approval to the Calderwood Project was founded upon s 75O of the EPA Act, subject to the operation of any regulation having the effect of precluding the grant of approval. The only relevant restriction is that found in cl 8N(1) of the Regulation, proscribing the grant of approval where the whole or part of a project is "located within an environmentally sensitive area of State significance." The phrase in parenthesis has the same meaning as it has in the Major Projects SEPP. The context of the defined phrase within that instrument indicates a need for specificity or particularity in identifying the particular land that engages the definition. So much appears not only from the words used but their context and purpose (cf Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12] - [14]).
Consistent with this principle of interpretation, as applied to paragraph (e) of the definition of the phrase "environmentally sensitive area of State significance", is the need to identify land in the LEP as being of high biodiversity significance. There is no provision within the LEP that uses the words of the definition to identify land as having the requisite level of biodiversity significance. The only phrase to which the Council can refer in the LEP which, it submits, has the requisite comparability is the phrase "area of high conservation value". That phrase is defined, not by reference to any ecological concept but rather as meaning land coloured beige on the Conservation Map. Neither in terms nor in substance can that definition be construed so as to identify land as being of high biodiversity significance. Definitions within the LEP of other concepts that may be referred to as having an ecological foundation, particularly "wildlife corridors or links", do not, as a matter of construction, identify land as being of high biodiversity significance. Further, the process of interpretation is not aided by the discursive text of the Mills Study, having regard both to the limited basis upon which that Study was admitted into evidence and also having regard to the substance of the text itself.
For these reasons, the LEP does not identify any part of the Calderwood Site hatched on the Plan marked as Exhibit C as being land of high biodiversity significance. As a consequence, the provisions of cl 8N(1) of the Regulation did not operate to prohibit the Minister's determination to grant the Concept Plan Approval for the Calderwood Project.
In light of this conclusion, it is unnecessary for me to address a further submission advanced on behalf of DLL to the effect that the Concept Plan Approval granted by the Minister was not a class of project to which the prohibition imposed by cl 8N(1) of the Regulation applied. The decision I have reached has assumed, consistent with the submissions of both the Council and the Minister, that the Calderwood Project was of a class capable of engaging the provisions of cl 8N(1).
Costs
As the Council has been unsuccessful in sustaining the single ground of challenge upon which it sought to prosecute these proceedings, the application of principle would ordinarily require that it be ordered to pay the costs of the successful party (s 98 Civil Procedure Act 2005; Rule 42.1 Uniform Civil Procedure Rules 2005). However, as there may be a question as to whether the Council should be required to pay the costs of both the Minister and DLL, it is appropriate that I refrain from expressing a final view as to the appropriate order for costs.
In the event that agreement cannot be reached among the parties as to the payment of costs, I will direct the provision of written submissions so that the question can be resolved without further substantial costs being incurred.
Orders
The orders that I make are as follows:
1. Summons dismissed.
2. Costs reserved.
3. Should any party seek an order for costs against another party or parties, short written submissions supporting the order sought must be provided to my Associate and to the other parties within 21 days from the date of this order.
4. A party against whom an order for costs is sought must within 14 days from receiving the written submissions referred to in order 3, provide to my Associate and to the other parties, short written submissions in response.
5. A party who has sought costs and received written submissions in accordance with order 4, may within seven days from the date of receiving those submissions, provide to my Associate and the other parties a brief written submission in reply.
6. Exhibits may be returned.
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Annexure "A"
Decision last updated: 07 March 2012
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