Tugun Cobaki Alliance Inc v Minister for Planning

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396

PARTIES:
APPLICANT
Tugun Cobaki Alliance Inc
FIRST RESPONDENT
Minister for Planning
SECOND RESPONDENT
Roads and Traffic Authority of New South Wales

FILE NUMBER(S): 40227 of 2006

CORAM: Jagot J

KEY ISSUES: Judicial Review :- Construction and Interpretation - Minister's approval under Pt 3A - validity - relevant considerations - savings and transitional regulation - inconsistency with Act - validity

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pt 3A, Pt 4, Pt 5
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005
Environmental Planning and Assessment Amendment (Major Projects – Transitional Provisions) Regulation 2005
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy No 14 – Coastal Wetlands
State Environmental Planning Policy No 63 - Major Transport Projects
Threatened Species Conservation Act 1995

CASES CITED: Association for Berowra Creek Inc v Minister for Planning and Another (2003) 124 LGERA 99;
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1;
Bruce v Cole and Others (1998) 45 NSWLR 163;
Bushell and Another v Secretary of State for the Environment [1981] AC 75;
Carroll and Others v Mijovich and Others (1991) 25 NSWLR 441;
Citron v Zündel (No 4) (2002) 41 CHRR D/274 (unreported, CHRT, Chairperson C Pensa, Member R Devins, 18 January 2002);
Chapman and Others v Tickner and Others (1995) 55 FCR 316;
Dainford Limited v Smith and Another (1984) 155 CLR 342;
Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575;
El Cheikh v Hurstville City Council and Others (2002) 121 LGERA 293;
FAI Insurances Limited v The Honourable Sir Henry Arthur Winneke and Others (1982) 151 CLR 342;
Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353;
James Edward Jeffs and Others v New Zealand Dairy Production and Marketing Board and Others [1967] AC 551;
Jones v Dunkel and Another (1959) 101 CLR 298;
Jones v Toben [2002] FCA 1150;
Kevin R Whelpton & Associates (Aust) Pty Ltd and Another v Attorney-General (Cth) 14 FCR 293;
Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277;
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207;
Maunsell v Olins [1975] AC 373;
Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24;
Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381;
Minister for Aboriginal Affairs and Torres Strait Islander Affairs v State of Western Australia and Ors (1996) 67 FCR 40;
No Dump Residents Association Inc v Collex Pty Limited [2006] NSWCA 94;
O’Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1983) 153 CLR 1;
Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319;
Pine Rivers Shire Council v Dorfler (1993) 80 LGERA 315;
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476;
Prineas v Forestry Commission of New South Wales and Others (1984) 53 LGRA 160;
Prineas v Forestry Commission of New South Wales and Others (1984) 49 LGRA 402;
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355;
Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57;
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212;
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363;
The State of South Australia v Tanner and Others (1989) 166 CLR 161;
The King v Hickman and Others; Ex parte Fox and Another; The King v Hickman and Others; Ex parte Clinton and Others (1945) 70 CLR 598;
Tickner and Others v Chapman and Others (1995) 57 FCR 451;
Transport Action Group Against Motorways Inc v Road and Traffic Authority and Another (1999) 46 NSWLR 598;
WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94;
Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707

DATES OF HEARING: 26/06/2006, 27/06/2006 (hearing)
30/06/2006, 04/07/2006, 10/07/2006 (further written submissions)

DATE OF JUDGMENT:
07/14/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr T Robertson SC with Ms L Byrne
SOLICITORS
Environmental Defenders' Office Ltd
FIRST RESPONDENT
Dr J Griffiths SC with Mr J Kirk
SOLICITORS
Department of Planning
SECOND RESPONDENT
Mr N Williams SC with Mr A Galasso
SOLICITORS
Blake Dawson Waldron

JUDGMENT:

TABLE OF CONTENTS

Paragraphs

Introduction 1 - 14

Background

15 - 16

17 - 21

22 - 49

50 - 59

60 - 70

First and second claims 71 - 85

Third, fourth and sixth claims 86

87 - 94

95 - 134

135 - 137

138 - 147

148 - 160

161

162 - 166

Matters related to the third and fourth claims 167

168 - 176

177 - 178

179 - 184

Seventh and eighth claims 185 - 195

Conclusions and orders 196

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

14 July 2006

40227 of 2006

TUGUN COBAKI ALLIANCE INC
Applicant

MINISTER FOR PLANNING
First Respondent

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES
Second Respondent

JUDGMENT

Jagot J:
Introduction
1 The applicant claimed that an approval granted by the Minister for Planning on 21 December 2005 for the carrying out of the Tugun Bypass project is invalid. The Tugun Bypass is a 7 kilometre, 4 lane, restricted access motorway between Tweed Heads in New South Wales and Currumbin in Queensland. It generally follows the alignment of the main runway at the Gold Coast Airport, but is located west of the airport other than in one section (where a tunnel under the airport is proposed).

2 The second respondent (the “RTA”) is the proponent of the Tugun Bypass project in New South Wales.

3 The Minister granted the approval under Pt 3A of the Environmental Planning and Assessment Act 1979 (the “EPA Act”). The Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (the “2005 Amendment Act”) inserted Part 3A in the EPA Act. Schedules 1, 4, 5 and 6 of the 2005 Amendment Act commenced on 1 August 2005.

4 The Tugun Bypass project commenced under Pt 5 of the EPA Act, prior to its amendment by the 2005 Amendment Act. An environmental impact statement and species impact statement were obtained and placed on public exhibition. As the RTA was both the proponent and a determining authority with respect to the activity where an environmental impact statement had been obtained, under Div 4 of Pt 5 of the EPA Act, the Minister was required to approve the carrying out of the activity. Before the RTA had sought the Minister’s approval, however, the 2005 Amendment Act repealed Div 4 of Pt 5.

5 The 2005 Amendment Act also amended Sch 6 to the EPA Act (given effect by s 159) to enable regulations to contain provisions of a savings or transitional nature consequent on the enactment of the 2005 Amendment Act. The Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005 (the “2005 Amendment Regulation”) contained provisions (cl 8J(1) to (3)) which enabled the Director-General to accept or adopt certain steps taken under Pt 5 as matters done under Pt 3A. The Director-General accepted the steps taken under Pt 5 with respect to the Tugun Bypass project for the purposes of Pt 3A.

6 The applicant’s claims arise under Pt 3A of the 2005 Amendment Act, and may be grouped as follows.

7 The applicant’s first and second claims were that, pursuant to Pt 3A, the Director-General required the RTA to provide a document (styled “statement of commitments”), which the provisions of Pt 3A then required to be made publicly available. The document was provided by the RTA, but not made publicly available by the Director-General. This was a breach of a requirement identified by Pt 3A as mandatory and meant that a pre-condition to the Minister’s power of approval (required objectively to be satisfied), had not been satisfied. Accordingly, the necessary consequence was invalidity of the approval.

8 The applicant did not press its fifth claim. The applicant’s third, fourth and sixth claims were that the provisions of Pt 3A required the Director-General to: - (i) include in the Director-General’s report to the Minister three classes of documents, and (ii) physically deliver to the Minister the Director-General’s report (including those three classes of documents). The three classes of documents were the proponent’s environmental assessment (that is, the environmental impact statement and species impact statement), advice provided by public authorities on the project and the proponent’s response to issues raised in submissions. Insofar as the EPA Act might contemplate electronic delivery of documents, the applicant claimed that a document was given to the Minister electronically only when actually downloaded by or on behalf of the Minister. The applicant claimed that neither physical delivery nor download of the documents had occurred. The applicant submitted that, by reason of these circumstances, the Minister failed to consider the three classes of documents as required, and also failed to consider another relevant matter (advice provided by the RTA’s portfolio Minister). A pre-condition to the Minister’s power of approval (required objectively to be satisfied), had not been satisfied. Accordingly, the necessary consequence was invalidity of the approval.

9 The applicant’s seventh and eighth claims related to the 2005 Amendment Regulation, in particular cl 8J(3). The applicant claimed that cl 8J(3) was invalid in that the clause was not authorised by Sch 6 to the EPA Act and was inconsistent with the provisions of Pt 3A. If invalid, then the functions exercised by the Director-General in reliance on cl 8J(3) were also invalid. The first and second claims above were supported on this basis in the alternative. If valid, then cl 8J(3) was inapplicable, as the RTA made a fresh application under Pt 3A, and thus was bound by that Part as a whole.

10 I have concluded that the applicant’s claims cannot be upheld. With respect to the first and second claims, I have found that the Director-General did not in fact exercise the function claimed by the applicant. In consequence, there was no obligation on the Director-General to make the RTA’s “statement of commitments” publicly available under s 75H(3).

11 The third, fourth and sixth claims may be subdivided into issues relating to: - (i) the Director-General giving documents to the Minister, and (ii) the Minister considering documents. I have concluded that one document (the proponent’s response to issues raised in submissions, or “submissions report”)) was not required to be either given to or considered by the Minister. Otherwise, on the first issue, I have concluded that the provisions of Pt 3A did not require the Director-General physically to include the other two classes of document (the proponent’s environmental assessment and the advice provided by public authorities on the project) in the Director-General’s report to the Minister, or physically to deliver that report (and the documents) to the Minister. The combination of delivery methods used by the Director-General satisfied the requirements of Pt 3A. That is, physical delivery of a file to the Minister, which included a hard copy of the Director-General’s report and hard copies of the advice provided by public authorities on the project, but not a hard copy of the proponent’s nine volume environmental assessment. Instead of a hard copy of that document being included in the Director-General’s report, the Director-General had arranged for that document (all nine volumes) to be uploaded onto the Department of Planning’s website. The Director-General’s report to the Minister identified the requirements of s 75I(2) of the 2005 Amendment Act (documents to be included in the Director-General’s report), referred to the proponent’s environmental assessment, and provided to the Minister the reference to the Department of Planning’s website address for that document.

12 On the second issue, I have construed the provisions of Pt 3A as requiring the Minister to consider the Director-General’s report proper and the advice provided by public authorities on the project (that is, as mandatory relevant considerations). I have also found that the Minister did so. I have concluded that Pt 3A did not require the Minister to consider either the proponent’s response to issues raised in submissions or the proponent’s environmental assessment, but left it to the Minister to decide whether or not to consider those documents. I have found, in any event, that the Minister considered those documents by considering the Director-General’s report proper which contained extensive reference to both the proponent’s response to issues raised in submissions and the proponent’s environmental assessment, and otherwise by considering the documents within the file delivered to the Minister for the specific purpose of the Minister’s decision on the project.

13 With respect to the seventh and eighth claims, I have concluded that cl 8J(3) of the 2005 Amendment Regulation, in its application to the project, was authorised by Sch 6 to the EPA Act and was not inconsistent with Pt 3A. I have also concluded that cl 8J(3) (and cl 8J(1) and (2)) applied to the Tugun Bypass project.

14 My reasons are as follows.

Background

The proposal

15 State Environmental Planning Policy No 63 - Major Transport Projects (“SEPP 63”) provided that a person may carry out development for the purposes of a major transport project without development consent (cl 6). The Tugun Bypass was included in Sch 1 to that policy and thus was development permissible without consent and subject to the procedures in Pt 5 of the EPA Act (cl 3(1)). An amendment to SEPP 63 on 2 September 2005 ensured (insofar as necessary) that part of the Tugun Bypass which crossed an area of wetland to which State Environmental Planning Policy No 14 – Coastal Wetlands applied, did not become subject to Pt 4 of the EPA Act as development permissible only with consent (cl 5(2)). As such, the Tugun Bypass as a whole was an “activity” as defined in s 110(1) of the EPA Act.

16 The Queensland Department of Main Roads originally proposed to undertake the Tugun Bypass, including the section within New South Wales, and (I infer) carried out significant preparatory work to that end. Subsequently, it was decided that the RTA would be the proponent for that part of the Tugun Bypass within New South Wales. Accordingly, under Pt 5 of the EPA Act, the RTA was the proponent of, and a determining authority in relation to, that activity insofar as it was located within New South Wales.

Steps taken under Pt 5 EPA Act

17 In accordance with s 112 of the EPA Act, the RTA determined that an environmental impact statement and species impact statement in respect of the activity was required to be prepared (s 112(1) and s 112(1B)). This triggered a series of obligations in Pt 5 of the EPA Act and the Environmental Planning and Assessment Regulation 2000 (the “EPA Regulation”). The RTA was to consult with the Director-General of the Department of Planning about the environmental impact statement. The Director-General was to issue the Director-General’s requirements for the preparation of the environmental impact statement (cl 231 of the EPA Regulation). The environmental impact statement was to be exhibited in accordance with s 113 of the EPA Act. As the RTA was the proponent of, and a determining authority in relation to, the activity for which it had obtained an environmental impact statement, the RTA was required to obtain the Minister’s approval to the carrying out of the activity under Div 4 of Pt 5 of the EPA Act.

18 The RTA sought the Director-General’s requirements for the preparation of the environmental impact statement for the Tugun Bypass on 22 September 2004. The Director-General issued the requirements on 1 October 2004. In addition to the standard requirements specified in cll 229 and 230 of the EPA Regulation, the Director-General required the environmental impact statement to address 44 key issues, grouped under headings (planning and strategic, alternatives, construction, ecology – general, ecology – SEPP 14 wetlands, water quality, hydrology and flooding, traffic and transport, noise and other). Two of the standard requirements (cl 230 and Sch 2, items 1 and 5, of the EPA Regulation) were that the environmental impact statement contain a summary and compile in one section the measures referred to in item 4(d) of Sch 2 (namely, “a full description of the measures proposed to mitigate any adverse effects of the development or activity on the environment”).

(1) Volume 1 contained a description of the Tugun Bypass, the approvals process, the community and stakeholder consultation, the need for the Bypass, the alternatives and preferred option, the proposed construction of the Bypass, the impacts of the Bypass on the physical and biological environment, a hazard and risk analysis, the impacts of the Bypass on the socio-economic environment, noise and vibration, cultural heritage, visual assessment, cumulative impacts, environmental management and monitoring, economic assessment, environmental sustainability, justification, as well as some 86 tables, 68 figures, and eight appendices. One of the tables (table 18.1) compiled the proponent’s proposed mitigation measures.

(2) Volume 1 (technical papers) contained a study of the community consultation process including the plan for consultation, the scope of the consultation, the consultation findings and conclusions. The appendices included various fact sheets, media releases, survey results and minutes of community meetings. The volume also contained an engineering design study and a traffic and transport study. The first study included an engineering design assessment of the Tugun Bypass (matters such as road geometry, road bridges, tunnel and approach ramps, road pavements, road shoulders, lay-by areas, maintenance areas, median cross-overs, truck parking areas, line marking and signs, and help telephones). The second included a traffic/transport design and impact assessment.

(3) Volume 2 (technical papers) contained a geotechnical assessment, an acid sulphate soil management statement, acid sulphate soil field test results, acid sulphate soil laboratory test results, groundwater analysis results, a contaminated land study (including landfill and groundwater test and monitoring results), a flooding and hydrological assessment, a surface water quality assessment, and a groundwater assessment (including aquifer test results).

(4) Volume 3 (technical papers) contained a noise and vibration assessment, including details of noise modelling procedures, model inputs, calculations and charts, traffic survey data, and many pages of tables of predicted noise levels on various assumptions. It also contained an air quality assessment, including air quality criteria, impacts and mitigation measures, greenhouse gas impacts and various monitoring data and traffic counts.

(5) Volume 4 (technical papers) contained a flora and fauna assessment (including details of survey methods, existing habitats, survey results, sites of significance, potential impacts, mitigation measures, cumulative impacts, and construction and operation management and monitoring). The appendices included studies of terrestrial and estuarine birds.

(6) Volume 5 (technical papers) contained a survey of reptiles, amphibians and mammals, an assessment of amelioration and monitoring measures for the conservation of herpetofauna, a study of the status and distribution of the Cobaki Long-nosed Potoroo population, surveys for coastal planigale, survey for a species of land snail, an aquatic flora and fauna study, lists of recorded flora and fauna species, and a report on compensatory habitat policies.

(7) Volume 6 contained an urban design, landscape and visual impact assessment, a cultural heritage assessment, a land use planning and socio-economic assessment, and a hazard and risk assessment.

(8) Volume 7 (designated volume 1 – species impact statement) contained a species impact statement prepared in accordance with the Threatened Species Conservation Act 1995 (ss 109 – 111).

20 A summary brochure was referred to in the environmental impact statement. Page XXVI of Main Volume 1 identified the summary brochure as one of the documents on which the public was invited to make submissions. The summary brochure largely reflected the terms of the executive summary section of the environmental impact statement, but also included a series of figures (from the main body of the environmental impact statement) depicting aspects of the Tugun Bypass. It set out a brief description of the proposal, the procedures involved in its environmental assessment, the development of the proposal, the reasons why the Tugun Bypass is needed, the other options considered, the aspects of the Tugun Bypass and what they will look like (including various figures), its relationship to the Gold Coast airport, crossing points, construction, conclusions about the impacts of the proposal (planning and land use, traffic and transport, noise, air quality, cultural heritage, water quality and flooding, groundwater, flora and fauna, social and economic effects, visual quality and landscape character, hazard and risk), cumulative impacts, measures to reduce impacts, benefits, the conclusions of the environmental impact statement, and details about how to make a submission.

21 In accordance with s 113 of the EPA Act, the RTA exhibited the environmental impact statement and species impact statement between 13 December 2004 and 15 March 2005. Under s 113(3), the RTA was required to forward to the Director-General copies of any representations made by any person with respect to the activity during the exhibition of the environmental impact statement. After the RTA had complied with these obligations it would then be able to seek the Minister’s approval to carry out the activity (s 115B(1) and s 115A).

New legislation

22 After the RTA had complied with the requirements set out in s 115B(1) (which were required to be completed before it could seek the Minister’s approval under s 115A), but before it had sought that approval, the 2005 Amendment Act commenced. The 2005 Amendment Act was assented to on 16 June 2005. Schedules 1, 4, 5 and 6 of the 2005 Amendment Act commenced on 1 August 2005.

23 The bill that became the 2005 Amendment Act was read a second time on 27 May 2005 by the Minister for Infrastructure and Planning, and Minister for Natural Resources. The Minister said that the legislation “introduces new mechanisms to ensure that the Government delivers quickly and efficiently on its infrastructure programs”. The legislation was to “cut red tape by reducing time, cost and complexity in the assessment of” projects of State significance and major projects, whilst strengthening “the rigour, transparency and independence of the process of assessment”. The legislation was necessary as the “…wellbeing of our economy depends on business being able to work with certainty, a minimum of risk, low transaction costs, and appropriate levels of regulation. This bill demonstrates the Government's determination to take decisive action to achieve these objectives”. (Hansard, 27 May 2005, p 16322). The explanatory note that accompanied the bill also emphasised that the reforms were to apply to “major infrastructure and other projects of significance to the State”.

24 Part of the decisive action taken in the 2005 Amendment Act was the repeal of Div 4 of Pt 5 of the EPA Act (cl [27] of Sch 1). The 2005 Amendment Act introduced a new part to the EPA Act, Pt 3A. Part 3A, Div 1, identified the concepts of “critical infrastructure project” and “major infrastructure development” (s 75A). Under s 75B, the Minister could declare (by State environmental planning policy or by order published in the Gazette) kinds of development to be a project to which Pt 3A applied – namely, (a) “major infrastructure or other development that, in the opinion of the Minister, is of State or regional environmental planning significance”, and (b) “major infrastructure or other development that is an activity for which the proponent is also the determining authority (within the meaning of Part 5) and that, in the opinion of the proponent, would (but for this Part) require an environmental impact statement to be obtained under that Part”.

25 The Minister declared, by order published in the Gazette on 29 July 2005, “development that is an activity for which the proponent (that is not a local council or county council) is also the determining authority and that, in the opinion of the proponent, would (but for this order) require an environmental impact statement to be obtained under Part 5” to be projects to which Pt 3A applied. By dint of these provisions, and because the Tugun Bypass was development for the purpose of a road within the meaning of “major infrastructure development”, the Tugun Bypass became a project to which Pt 3A applied.

26 A savings provision inserted into Sch 6 to the EPA Act (which has effect by s 159), cl 88(1), did not apply to continue the operation of Div 4 of Pt 5 with respect to the Tugun Bypass. That provision, in terms, applied only to an activity for which the Minister’s approval under Div 4 of Pt 5 was sought prior to repeal of Div 4 of Pt 5. As approval under Div 4 of Pt 5 of the EPA Act had not been sought for the Tugun Bypass before the repeal of that Division, cl 88(1) was inapplicable.

27 Clause 1(1) of Sch 6 to the EPA Act was amended by including reference to the 2005 Amendment Act as one of the statutes with respect to which regulations could “contain provisions of a savings or transitional nature consequent on the enactment” of that Act. Clause 87 of Sch 6, also introduced by the 2005 Amendment Act into the new Pt 17 (in which cl 88 is located), provided that the regulations “made under Part 1 of this Schedule have effect despite anything to the contrary in this Part”.

28 The 2005 Amendment Regulation was published in the Gazette on 29 July 2005 and commenced on the commencement of Pt 3A of the EPA Act (that is, 1 August 2005). The explanatory note published with the 2005 Amendment Regulation said that its object was to “make provision consequent on the commencement of the amendments made by” the 2005 Amendment Act, and that it had been made under the EPA Act including s 75Z, 157 and Sch 6.

8J Transitional provisions

(1) The Director-General may adopt (with or without modification), as environmental assessment requirements for a project or concept plan, environmental assessment requirements issued by the Director-General under Part 4 or under Division 4 of Part 5 of the Act with respect to any development or activity before it becomes a project to which Part 3A of the Act applies.

(2) The Director-General may accept (with or without modification), as an environmental assessment for a project or concept plan, an environmental impact statement obtained in accordance with requirements of the Director-General under Part 4 or under Division 4 of Part 5 of the Act with respect to any development or activity before it becomes a project to which Part 3A of the Act applies.

(3) The Director-General may accept, as a period of public availability of the environmental assessment for a project or concept plan (under section 75H (3) of the Act), a period of public exhibition of an environmental impact statement referred to in subclause (2) before the relevant development or activity becomes a project to which Part 3A of the Act applies.

…

30 Clause 8J was amended by the Environmental Planning and Assessment Amendment (Major Projects – Transitional Provisions) Regulation 2005, published in the Gazette on 7 December 2005, but expressed to commence on the date of assent to the 2005 Amendment Act (that is, 16 June 2005). Nothing turns on the amendment in this matter (and cl 1(3) of Sch 6 to the EPA Act would have operated on the amendment to prevent its commencement prior to publication prejudicing the rights of any person other than the State or an authority of the State).

(1) A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part.

(2) The person is to comply with any conditions to which such an approval is subject.

32 Under s 75E(1), a proponent may apply for the approval of the Minister under Pt 3A to carry out a project. The application is to describe the project and contain any other matter required by the Director-General (s 75E(2)). The application is to be lodged with the Director-General (s 75E(3)). When an application is made for the Minister’s approval for a project, the Director-General is to prepare environmental assessment requirements having regard to any relevant guidelines in respect of the project, and is to notify the proponent of the environmental assessment requirements (s 75F(2) and (3)). The Director-General may require the proponent to include in an environmental assessment a statement of the commitments the proponent is prepared to make for environmental management and mitigation measures on the site (s 75F(6)).

(6) The Director-General may require the proponent to submit to the Director-General:

(a) a response to the issues raised in those submissions, and

(b) a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and

(c) any revised statement of commitments.

If the Director-General considers that significant changes are proposed to the nature of the project, the Director-General may require the proponent to make the preferred project report available to the public.

(1) The Director-General is to give a report on a project to the Minister for the purposes of the Minister’s consideration of the application for approval to carry out the project.

(2) The Director-General’s report is to include:

(a) a copy of the proponent’s environmental assessment and any preferred project report, and

(b) any advice provided by public authorities on the project, and

(c) a copy of any report of a panel constituted under section 75G in respect of the project, and

(d) a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and

(e) except in the case of a critical infrastructure project—a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and

(f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate.

(1) If:

(a) the proponent has duly applied to the Minister for approval under this Part to carry out a project, and
(b) the environmental assessment requirements under this Division with respect to the project have been complied with,
the Minister may approve or disapprove of the carrying out of the project.

(2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:

(a) the Director-General’s report on the project and the reports, advice and recommendations contained in the report, and

(b) if the proponent is a public authority—any advice provided by the Minister having portfolio responsibility for the proponent, and

(c) if the Minister has directed an inquiry be held in accordance with section 119 with respect to the project—any findings or recommendations of the Commission of Inquiry.

(3) The Minister cannot approve of the carrying out of a project:

(a) that is not a critical infrastructure project, and

(b) that would (but for this Part) be wholly prohibited under an environmental planning instrument by the operation of section 76B.

(4) A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine.

(8) Nothing in this section authorises the delegation of:

(a) the power of delegation conferred by this section, or

(a1) the function of the Minister under Part 3A of determining whether to approve the carrying out of a project or the concept plan for a project, or

(b) any function of the Minister conferred by section 80 (7), 117 or 118 or by section 130 (4).

38 Section 75K provides for appeals by a proponent who is dissatisfied with the Minister’s determination if the project is not a critical infrastructure project, the proponent is not a public authority and if, but for Pt 3A, the project would have been development subject to Pt 4 of the EPA Act. Objectors are entitled to be heard in any such appeal as if they were a party (s 75K(3)). Section 75L provides for appeals by objectors in the circumstances specified (including that the project is not a critical infrastructure project and, but for Pt 3A, the project would have been designated development under Pt 4 of the EPA Act). An objector is identified in s 75L(2) as a person who has made a submission under s 75H by way of objection to an application for approval under Div 2 to carry out a project. These provisions reflect the observation in the Minister’s second reading speech that appeal rights “will generally continue to apply as if the project was being assessed under either part 4 or part 5 as is relevant” (Hansard, 27 May 2005, p 16322). That is, there were no merit appeal rights under Pt 5, and objector merit appeals under Pt 4 were confined to designated development.

39 Division 3 of Pt 3A regulates concept plans for certain projects and is not relevant to this matter. Div 4 is headed “Application of other provisions of this and other Acts”. Section 75R(1) states that Pts 4 and Part 5 do not, except as provided by Pt 3A, apply to or in respect of an approved project (including the declaration of the project as a project to which Pt 3A applies and any approval or other requirement under Pt 3A for the project). An “approved project” is a project to the extent that it is approved by the Minister under Pt 3A, but does not include a project for which only approval for a concept plan has been given (s 75A). Under s 75R(3), environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.

(1) This section applies to:

(a) proceedings in the Court (and orders made by the Court) under Division 3 of Part 6, and

(b) proceedings in the Court (and orders made by the Court) under section 252 or 253 of the Protection of the Environment Operations Act 1997, and

(c) proceedings in the Court (and orders made by the Court) under section 20(2) of the Land and Environment Court Act 1979.

(2) Proceedings in the Court (and orders made by the Court) cannot be taken or made, except on application made or approved by the Minister:

(a) to remedy or restrain a breach of this Act (within the meaning of Division 3 of Part 6) arising under this Part in respect of a critical infrastructure project, including the declaration of the project as a project (and a critical infrastructure project) to which this Part applies and any approval or other requirement under this Part for the project, or

(b) to enforce any conditions of an approval under this Part for a critical infrastructure project, or

(c) to remedy or restrain a breach of this or any other Act arising in respect of the giving of an authorisation of a kind referred to in section 75V(1) for a critical infrastructure project (or in respect of the conditions of such an authorisation).

41 Div 3 of Pt 6 of the EPA Act, as referred to in s 75T, contains s 122 (the extended definition of “breach”), s 123 (the open standing provision to restrain or remedy breaches of the EPA Act) and s 124 (the provision that the Court may make such order as it thinks fit to remedy or restrain a breach which it is satisfied has occurred).

42 Section 75U(1) provides that the authorisations which would otherwise be required under nominated statutes are not required for an approved project and that, accordingly, the provisions of any Act that prohibit an activity without such an authority do not apply. Section 75V provides that any authorisation required under other nominated Acts cannot be refused if necessary for carrying out an approved project and is to be substantially consistent with the approval under Pt 3A. This reflects part of the second reading speech in which the Minister said that “(n)ew part 3A provides for integrated approvals that will consolidate 15 approvals under nine Acts into a single assessment process and approval given under the Environmental Planning and Assessment Act.” (Hansard, 27 May 2005, p 16322).

(1) …

(2) The following documents under this Part in relation to a project are to be made publicly available by the Director-General:

(a) applications to carry out projects,

(b) environmental assessment requirements for a project determined by the Director-General or the Minister,

(c) environmental assessment reports of the Director-General to the Minister,

(d) approvals to carry out projects given by the Minister,

(e) concept plans submitted for the Minister’s approval (and approvals of concept plans),

(f) requests for modifications of approvals given by the Minister and any modifications made by the Minister.

(3) The Minister may, but is not required to, give reasons to the proponent for:

(a) any disapproval, or conditions or modifications, of a project, or

(b) any disapproval, or modifications of, a concept plan for a project, or

(c) any conditions of approval of a modification of the approval of a project.

(4) The validity of an approval or other decision under this Part cannot be questioned in any legal proceedings in which the decision may be challenged except those commenced in the Court within 3 months after public notice of the decision was given.

(5) The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project.

44 Section 75X(4) reflects the terms of s 101, the subject of consideration by the Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707 and Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207. The class 4 application was filed on 22 March 2006, within the three month period specified in s 75X(4) (as public notice of the decision was given on 23 December 2005). Section 75X(5) reflects the terms of s 102, considered by Lloyd J in Association for Berowra Creek Inc v Minister for Planning and Another (2003) 124 LGERA 99.

45 Section 75Z provides for the making of regulations. Section 75ZA provides that development may be declared to be a project to which Pt 3A applies even if action has been taken under Pts 4 or 5 before the declaration (whether before or after the commencement of Pt 3A) in which event, any Pt 4 development consent or Pt 5 approval ceases to have effect but is revived if the declaration is revoked without approval under Pt 3A having been granted. If approval is granted under Pt 3A and the declaration then revoked, the approval is taken to be a development consent granted under Pt 4.

(1) Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served:

(a) …

(b) …

(c) by sending it by facsimile or electronic transmission (including for example the Internet) to the person in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person.

47 Section 157 contains the general regulation making power.

The Director-General’s report under section 75I of the Act in relation to a project is to include the following matters (to the extent that those matters are not otherwise included in that report in accordance with the requirements of that section):

(a) an assessment of the environmental impact of the project,

(b) any aspect of the public interest that the Director-General considers relevant to the project,

(c) the suitability of the site for the project,

(d) copies of submissions received by the Director-General in connection with public consultation under section 75H or a summary of the issues raised in those submissions.

(1) …

(2) The documents are to be made available on the Department’s website and in such other locations as the Director-General determines.

(3) …

(4) In addition to the documents referred to in section 75X (2) of the Act, the Director-General is to include on the Department’s website and in such other locations as the Director-General determines the following documents:

(a) the declaration of development as a project to which Part 3A of the Act applies or its declaration as a critical infrastructure project,

(b) guidelines published under section 75F or 75H of the Act,

(c) any environmental assessment in relation to a project that has been placed on public exhibition under section 75H of the Act,

(d) responses to submissions, preferred project reports and other material in relation to a project provided to the Director-General by the proponent after the end of the public consultation period (whether under section 75H (6) of the Act or otherwise),

(e) reports of panels under section 75G of the Act or of inquiries under section 119 of the Act in relation to a project,

(f) any reasons given to the proponent by the Minister as referred to in section 75X (3) of the Act.

(5) A document may be made available on the Department’s website by providing an electronic link to the document on another website.

The response to the new legislation

Part 3A of the Act came into operation on 1 August 2005. At that time, the assessment of the Tugun Bypass project had not advanced to the stage of concurrence being sought from the Director-General of the Department of Environment and Conservation or an application for approval being submitted under Division 4, Part 5 of the EP&A Act.

Accordingly, it is the RTA’s understanding that certain additional steps are now required to progress this project. Therefore, the RTA, by this letter:

1. applies under section 75E of the EP&A Act for approval from the Minister for Planning for the carrying out of the Tugun Bypass within NSW.

2. requests that you:

adopt the environmental assessment requirements issued for this project on 22 September 2004

accept the EIS and SIS published in respect of this project in December 2004

accept the period of public exhibition of the EIS and SIS in respect of this project between 13 December 2004 and 15 March 2005,

in accordance with Clause 8J of the Environmental Planning and Assessment Regulation.

3. seeks your agreement to the RTA preparing a Submissions Report, including a statement of commitments and incorporating as necessary a Preferred Project Report, in satisfaction of the requirements of Section 75H(6) of the EP&A Act.

51 On 13 October 2005, the RTA sent a further letter to the Director-General enclosing a copy of the “Submissions Report (including a Statement of Commitments for you [sic] information and assistance in the preparation of your report to the Minister for Planning”.

The Roads and Traffic Authority has decided that the project requires an environmental impact statement to be obtained within the meaning of Part 5 of the EP&A Act and, by order of the Minister, is now subject to Part 3A. The Minister is the relevant approval authority.

Director-General’s requirements (DGRs) for an Environmental Impact Statement (now an “Environmental Assessment” under Part 3A) were previously issued. Pursuant to Clause 8J of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005, the Director-General adopts the previously issued DGRs as environmental assessment requirements and accepts the EIS and the public exhibition period for the EIS for the purposes of Part 3A for the Tugun Bypass. This is provided that the proposal remains essentially the same as at the time the DGRs were issued.

Please note that Part 3A enables the Director General to require a Statement of Commitments (for environmental management and mitigation measure) to be included in the Environmental Assessment. It is agreed that the RTA should prepare a Submissions Report for the project, including a Statement of Commitments. The need for a Preferred Project Report (PPR) will be considered following the Department’s review of the Submissions Report.

53 The primary issue arising under the applicant’s first and second claims is whether the reference to a “statement of commitments” in this letter involved the Director-General exercising a power under s 75F(6). If the former, then the applicant submitted that the Director-General was bound to make the “statement of commitments” lodged by the RTA publicly available under s 75H(3). If, as the respondents submitted, the Director-General was accepting an offer referable to s 75H(6)(c) then the respondents say that it is apparent from the provisions of Pt 3A (particularly s 75H(3), (6) and (7)) that the Director-General was not subject to an obligation to make the “statement of commitments” publicly available.

54 The letter said that the “statement of commitments” was to be included in the “submissions report”. The “submissions report” is agreed by the parties to be a reference to s 75H(6)(a) of the 2005 Amendment Act. The “submissions report” is one of the documents the applicant contended in its third, fourth and sixth claims that the Director-General was required to include in his report to the Minister and physically deliver to the Minister, and that the Minister was required to consider. The letter also referred to the environmental impact statement (which, for reasons given below, I find should be understood as a reference to the environmental impact statement and species impact statement). The environmental impact statement and species impact statement (being the “proponent’s environmental assessment”) are also documents that the applicant contended in its third, fourth and sixth claims the Director-General was required to include in his report to the Minister and physically deliver to the Minister, and that the Minister was required to consider.

Please note that the assessment is being undertaken as a transitional project. For this transitional project, we would appreciate your advice on the Submissions Report and particularly the proposed Statement of Commitments. Of particular relevance are issues within your relevant fields of expertise, such as threatened species, cultural heritage and groundwater. Any additional Conditions of Approval or post-approval role that you feel are necessary should be provided with a brief justification.

…

In framing your response, please be aware that the Proponent’s Statement of Commitments will form an integral part of any approval.

56 The document styled “submissions report” is two volumes. As noted, the RTA lodged the document on 13 October 2005. Volume 1 is the main volume. It included a section (section 4) setting out a description of the submissions received, and a response to each issue raised in the submissions. Section 7 of volume 1 included a table. Table 7.1 set out the measures as published in the environmental impact statement and species impact statement and not modified (as per table 18.1 in main volume 1 of the environmental impact statement, but for the modified items). Table 7.2 set out additional measures arising from discussions with various Commonwealth and State government agencies and modified versions of measures originally published in the environmental impact statement and species impact statement. Table 7.3 was described as measures previously published but withdrawn or satisfied (although that table seems to be missing). Section 7.3 specified a number of standard conditions from the Department of Planning’s database, which the RTA was willing to accept. Page 7-1 explained that tables 7.1 and 7.2, and section 7.3 (but not table 7.3), comprised the RTA’s statement of commitments.

57 Volume 2 (a large volume of more than 500 pages) contained the appendices. There were 16 appendices dealing with various topics. The appendices comprised: - Appendix A - Detailed Breakdown of Submissions, Appendix B – Boyd Street Overpass Preliminary Overview of Environmental Issues, Appendix C – Results of a Preliminary Cultural Heritage Survey of the Proposed Tugun Bypass, Appendix D – Tugun Bypass Indigenous Cultural Heritage Visit, Appendix E – Proposed Tugun Bypass – Review of Wallum Sedge Frog and the Green-thighed Frog, Appendix F – Eight-part test of significance for Durringtonia paludosa, Appendix G – Vegetation Survey of Proposed Compensatory Habitat Blocks A and E, Tweeds Heads West, NSW for the Tugun Bypass Project, Appendix H – Tugun Bypass, Stewart Road to Kennedy Drive – Compensatory Habitat, Appendix I – Systematic Survey for Coastal Planigale (Planigale maculata) on Crown Land and Adjacent GCAL Controlled Lands, Appendix J – Fauna Survey of Lands Identified for Compensatory Habitat for the Proposed Tugun Bypass Project, Appendix K – Stage I Assessment of the Adequacy of the Proposed Compensatory Habitat Package for the Tugun Bypass, Appendix L – Tugun Bypass Review of Existing and Proposed Groundwater Investigations, Appendix M – Responses to Issues Raised by DIPNR, Appendix N – Eight-part test of significance for Randia moorei, Appendix O – Potential for Walking Trail between Tugun Heights Conservation Park and Hidden Valley, Appendix P – Bird Management Plan.

58 Several of the government agencies responded to the correspondence from the Department. These are documents (being advice provided by public authorities on the project) that the applicant contended, in its third and fourth claims, the Director-General was required to include in his report to the Minister and physically deliver to the Minister, and that the Minister was required to consider. Around the same time, some members of the public wrote to the Minister identifying their concerns with the proposal and inadequacies they perceived in the environmental impact statement.

59 The RTA modified its statement of commitments on 16 December 2005, following a memorandum from a Department officer (Mr Brendon Baker) of 23 November 2005 and a meeting with Mr Baker on 29 November 2005.

The Director-General’s report

60 Mr Brendon Baker gave evidence. Mr Baker is an ecologist, and was employed by the Department of Planning between 5 August 2002 and 3 March 2006.

61 On 31 October 2005, Mr Baker sent an email to Mr Gus Ortega, a person he described as responsible for managing the Department of Planning’s website. There was no evidence in this matter about the nature of email communications, websites or the Internet. In Jones v Toben [2002] FCA 1150 at [64] and [65], Branson J held that s 144 of the Evidence Act 1995 rendered proof of the nature of the Internet and World Wide Web unnecessary, as these matters were common knowledge generally. I agree and adopt her Honour’s descriptions of both. That is, the “internet is a means of global communication that relies on a universal set of protocols or standards for the transmission of information” (citing Canadian Human Rights Tribunal in Citron v Zündel (No 4) (2002) 41 CHRR D/274 (unreported, CHRT, Chairperson C Pensa, Member R Devins, 18 January 2002) at [60]), and the World Wide Web “is a specific application that uses the internet to send and display data, including text, graphics, audio and video. There are two active components on the web: a server that stores and transmits information, and a client or browser that requests, receives and displays the information obtained from the server. A “web site” is a collection of computer files that are coded in a specific way … to allow information to be sent on request to a browser. The files are then displayed in a way consistent with the instructions provided by the creator of the web site. Every web site has a unique uniform resource locator (URL), akin to their internet address. Once connected to the internet, the URL … is necessary to gain access to a given web site”.

62 Mr Baker’s email asked Mr Ortega to add the details for the Tugun Bypass project to the “admin tracking database and the Major Projects Register on the web”. Mr Baker said he delivered a compact disc to Mr Ortega for that purpose, which contained the complete environmental impact statement, species impact statement and addendum, and submissions report (including all appendices). Mr Ortega responded by email on the same day saying “All up at: Mr Baker checked the Department’s website and observed that the complete environmental impact statement, species impact statement and addendum and submissions report with all appendices had been uploaded, other than appendices B, C, K, M and L to the submissions report which were too large to upload. A further document was placed on the Department’s website on the major projects register page relating to the Tugun Bypass, (I infer) following consultation between Mr Baker and Mr Ortega. That document listed the documents available on the website relating to the Tugun Bypass and, with respect to the submissions report, said “for Appendices B, C, K and M please contact Brendon Baker” and gave his phone number. Mr Baker said that he saw such a document when he checked the website (although I infer that he in fact saw an earlier version of the document in evidence). The omission of reference to appendix L appears to be an oversight as it also was not one of the appendices said to be available electronically.

63 Mr Baker prepared a briefing note for the Minister on the Tugun Bypass and a document headed “Major Project Assessment: Tugun Bypass: Director-General’s environmental assessment report, section 75I of the Environmental Planning and Assessment Act 1979” dated December 2005.

64 Mr Baker said that before he prepared these documents he read the whole of the environmental impact statement, the species impact statement and addendum, all of the objections and submissions received in response to the exhibition and notification of the proposal, the whole of the submissions report and appendices, and the other submissions received by the RTA. Mr Baker met twice with the Director-General in the week leading up to 20 December 2005 for the purpose of briefing him on the preparation of the two documents. On 20 December 2005, Mr Baker was requested by either the Director-General or his immediate supervisor to take Departmental file S99/01179 – 6 to Governor Macquarie Tower, within which the Minister’s office was located. Mr Baker took that file, which included document Y05/4435 (the briefing note and Director-General’s report) to the foyer of Governor Macquarie Tower where he met the Director-General. Together, they looked at certain documents including the briefing note and Appendix A to the Director-General’s report. Mr Baker saw the Director-General sign the briefing paper and the Director-General’s report. He then saw the Director-General go into one of the lifts, which led to the Minister’s office.

65 A document headed “Ministerial correspondence tracking system” shows that file S99/01179 – 6 was moved to the Minister’s office on 20 December 2005. The file is in evidence. It contains the briefing note and the Director-General’s report. The briefing note bears the signature of “Sam Haddad Director-General” above the date 20 December 2005. The foreword to the Director-General’s report also bears the signature of “Sam Haddad Director-General of the Department of Planning ” above the date 20 December 2005.

APPENDIX A: SECTION 75l CONSIDERATIONS

Section 75l of the EP&A Act identifies items that the Director-General’s environmental assessment report is to include.

(a) a copy of the proponent’s environmental assessment	A copy of the proponent’s environmental assessment can be viewed at Bypass Project. A link is provided on the Department’s web site (
(b) any advice provided by public authorities on the project.	Advice was received from DEC, DNR, DPI (Fisheries) and Department of Lands. Copies of this advice is provided A link is provided on the Department’s web site (
(c) a copy of any report of a panel constituted under section 75G in respect of the project.	Not applicable.
(d) a copy or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project.	Not applicable.
(e) except in the case of a critical infrastructure project – a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division.	Not applicable.
(f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate.	This Report.

67 Mr Baker did not take the copy of the environmental impact statement or submissions report in his custody to the Director-General on 20 December 2005. He did not receive a telephone call from any person (including the Minister) to access appendices B, C, K, M and L to the submissions report. I accept Mr Baker’s evidence, as summarised above.

I, the Minister for Planning approve under s.75J of the Environmental Planning and Assessment Act 1979 the Project referred to in Schedule 1, subject to the conditions in Schedule 2.

SCHEDULE 1: DESCRIPTION OF TUGUN BYPASS

The Project is the TUGUN BYPASS as described in the:

1. environmental impact statement (EIS) for the Tugun Bypass Stewart Road to Kennedy Drive prepared by Queensland Department Of Main Roads and the NSW Roads And Traffic Authority, dated December 2004; as modified by the
2. Submissions Report for the Tugun Bypass Stewart Road to Kennedy Drive prepared by the Queensland Department of Main Roads and the NSW Roads and Traffic Authority dated October 2005; and
3. revised Statement of Commitments in Attachment 1 to Schedule 2.

70 Schedule 2 of the instrument of approval included the conditions of approval and the revised statement of commitments.

First and second claims

71 The applicant’s challenge to the validity of cl 8J(3) of the 2005 Amendment Regulation was the subject of the seventh claim. I will deal with it separately. Accordingly, the first claim was that the proponent’s environmental assessment was not exhibited as required by s 75H(3), in that the Director-General required the RTA to include in the environmental assessment a statement of commitments under s 75F(6), and the statement of commitments was never exhibited. This constituted a breach of a requirement nominated as mandatory by s 75X(5). The second claim was that the Director-General making the environmental assessment publicly available in accordance with s 75H(3) was an “environmental assessment requirement[s] under this Division…”, as referred to in s 75J(1)(b), which had not “been complied with”. The applicant submitted that, properly construed, s 75J(1)(a) and (b) create jurisdictional facts and thus, relevantly, the “environmental assessment requirements under” Div 2 of Pt 3A (objectively) must be satisfied. As they were not satisfied, the Minister approved the carrying out of the project when a pre-condition to the power of approval specified in s 75J(1)(b) had not been met.

72 The respondents submitted that the Director-General did not require the RTA to include in the environmental assessment a statement of commitments within the meaning of s75F(6), but accepted a revised statement of commitments under s 75H(6)(c). As such, there was no obligation on the Director-General to make that statement of commitments publicly available under s 75H(3). In the statutory scheme, a revised statement of commitments can only be prepared after exhibition and, as s 75H(7) discloses, there was no obligation on the Director-General to make any such document publicly available. The respondents also submitted that the reference to “environmental assessment requirements under this Division” in s 75(1)(b) is limited to requirements specified in s 75F, and does not extend to any other requirement of the Division.

73 The first and second claims depend on the characterisation of the function exercised by the Director-General through his delegate (s 23(1)(a) of the EPA Act) on 20 October 2005.

74 The applicant submitted that the only function the Director-General could have exercised was that under s 75F(6). No statement of commitments had been lodged. Thus, the Director-General could not have been exercising a function under s 75H(6)(c) (as the respondents claim), as there was no document to revise. To support this contention, the applicant pointed to pp 18 and 44 of the Department’s file (pp 3 and 30 of the Director-General’s report), which referred to a statement of commitments having been prepared in accordance with s 75F(6).

75 The respondents submitted that the context of the 20 October 2005 letter disclosed that the Director-General had not exercised a function under s 75F(6). In particular: - (i) the environmental impact statement had been prepared in accordance with, and exhibited under the EPA Act, prior to the 2005 Amendment Act commencing. At that time the Director-General did not have the power in s 75F(6), (ii) the 20 October 2005 letter responded to the RTA’s 6 October 2005 letter. The RTA asked the Director-General to adopt the requirements issued on 22 September 2004 as the environmental assessment requirements for the project under Pt 3A, accept the environmental impact statement and species impact statement as the environmental assessment for the project under Pt 3A, and accept as a period of public availability under s 75H(3) the period of exhibition of the environmental impact statement under Pt 5 of the EPA Act. The RTA sought the Director-General’s “agreement” to the RTA preparing a “submissions report” and including in that report a statement of commitments, said by the RTA to be “in satisfaction of the requirements of Section 75H(6) of the EP&A Act”, and (iii) in that context, the Director-General’s response that “[i]t is agreed that the RTA should prepare a Submissions Report for the project, including a Statement of Commitments”, cannot be an exercise of power under s 75F(6) and is referable only to s 75H(6).

76 Sections 75F and 75H distinguish between the functions the Director-General is to and may perform. The Director-General is to prepare environmental assessment requirements (s 75F(2)), but may require a proponent to include in an environmental assessment a statement of commitments (s 75F(6)). The Director-General is to provide copies of submissions received by the Director-General to the proponent (s 75H(5)(a)), but may require the proponent to submit a response to those submissions, a preferred project report that outlines any proposed changes to the project to minimise its environmental impact and any revised statement of commitments (s 75H(6)).

77 The Director-General, by the letter dated 20 October 2005, adopted the 2 September 2004 requirements as the environmental assessment requirements under Pt 3A, and accepted the environmental impact statement as the Pt 3A environmental assessment and its period of public exhibition as the Pt 3A period of public availability. In this context, I am satisfied that the actions of the Director-General with respect to the statement of commitments were not an exercise of power under s 75F(6).

78 First, the Director-General could not have accepted an environmental impact statement as the environmental assessment under Pt 3A (which did not include a statement of commitments under s 75F(6)), and yet required the environmental assessment to include a statement of commitments under s 75F(6). The latter would necessarily have involved the Director-General in not accepting the environmental impact statement as the environmental assessment under Pt 3A but, rather, in requiring the RTA to submit a revised environmental assessment, including a statement of commitments, as contemplated by s 75H(2). The Director-General’s acceptance of the environmental impact statement as the environmental assessment under Pt 3A (which did not include a statement of commitments under s 75F(6)) is not consistent with the Director-General having exercised power under s 75F(6).

79 Secondly, the Director-General could not have accepted the period of public exhibition of the environmental impact statement under Pt 5 as the period of public availability under s 75H(3), and yet required a statement of commitments under s 75F(6). The latter would necessarily have involved the Director-General in not accepting the period of public exhibition of the environmental impact statement under Pt 5 as the period of public availability under s 75H(3) but, rather, in requiring the RTA to revise the environmental impact statement to include a statement of commitments as referred to in s 75F(6) (see, again, the power available to the Director-General under s 75H(2)). The Director-General’s acceptance of the public exhibition of environmental impact statement as the period of public availability of the environmental assessment is not consistent with the Director-General having exercised power under s 75F(6).

80 The applicant’s submissions are also inconsistent with the terms of the 20 October 2005 letter. That letter, in terms, is a response to the RTA’s 6 October 2005 letter. The Director-General, in referring to the “submissions report”, must be understood as requiring the RTA to provide a response to the issues raised in submissions in accordance with s 75H(6)(a). It made sense for the Director-General to agree that the RTA should prepare a response to the issues raised in the submissions. Under Pt 5 of the EPA Act, s 113(2), the submissions had been lodged with the RTA rather than the Director-General, and the RTA had informed the Director-General that it was already well advanced in preparing a “representations report” (like “submissions report”, a reference to a statutory obligation to address submissions in s 113(5) of the EPA Act).

81 Although the Director-General’s response is framed as an agreement to an offer, those notions are inapt in this context. In saying that the RTA “should” prepare a submissions report for the project, including a statement of commitments, the Director-General is to be understood as exercising the power under s 75H(6)(a) to require the RTA to do so. The letter conveys the Director-General’s requirement that the statement of commitments will be included in the submissions report. This statement in the letter follows immediately after the reference to the capacity to require such a statement to be included within a proponent’s environmental assessment. The statutory scheme discloses that the proponent’s environmental assessment (s 75F(5) and s 75H(1)) is different from any response to issues raised in submissions prepared by a proponent (s 75H(6)(a)). The former must be made publicly available (s 75H(3)), whereas the latter need not (see, for example, s 75H(7)). The Director-General’s requirement that the statement of commitments be included within the submissions report (and not in the environmental assessment – even though the Director-General was plainly aware of that capacity) is inconsistent with the conclusion that the Director-General exercised power under s 75F(6).

82 The RTA submitted that table 18.1 in the environmental impact statement (required by cl 230 and items 4(d) and 5 of Sch 2 to the EPA Regulation) was a statement of mitigation measures (in substance the same as a statement of commitments), and that the Director-General required the submissions report to include a revised statement of commitments (s 75H(6)(c)), which was done. This may be so, but I prefer to give the Director-General’s words of 20 October 2005 their ordinary meaning.

83 The shorthand references “submissions report” and “statement of commitments” risk distracting from the language of the statute. When regard is had to that language, it is apparent that requiring the RTA to prepare a “Submissions Report for the project, including a Statement of Commitments” is referable to s 75H(6)(a). A response to issues raised in submissions might well include a “statement of commitments” (for example, to address issues raised in those submissions). Hence, requiring a proponent to provide a response to issues raised in submissions is capable of extending to a response which includes specification of a proponent’s commitments to address those issues – and that is what the Director-General required. Section 75H(6)(a) is itself a sufficient source of power for such a requirement. It does not matter whether there was or was not (in name or in substance) a “statement of commitments” in the environmental impact statement capable of revision under s 75H(6)(c). The Director-General’s requirement, in terms, was to be addressed as part of the response to the issues raised in submissions, which was referable only to s 75H(6)(a). The requirement is incapable of reference to s 75F(6) in the circumstances I have described.

84 The subsequent references in the Director-General’s report to s 75F(6) cannot alter what in fact occurred on 20 October 2005. I am satisfied that the Director-General did not require the RTA to include in its environmental assessment a statement of the commitments the RTA was prepared to make for environmental management and mitigation measures under s 75F(6).

85 Absent the Director-General having required the RTA to include in its environmental assessment a statement of the commitments the RTA was prepared to make for environmental management and mitigation measures under s 75F(6), there was no obligation on the Director-General to make that statement of commitments publicly available under s 75H(3). Hence, there was no breach of that provision. It follows that the first and second claims must fail (assuming the validity of cl 8J of the 2005 Amendment Regulation). Given this conclusion, the construction of s 75J(1)(b) and s 75X(5) does not arise under the first and second claims.

Third, fourth and sixth claims

86 Determining: (i) what documents the Director-General was required to include in his report to the Minister, (ii) how those documents had to be given to the Minister, and (iii) what documents the Minister was obliged to consider, depends on the proper construction of ss 75I and 75J of Pt 3A, construed in context.

The parties’ submissions

87 As noted, the three classes of documents the applicant submitted the Director-General had to include in the Director-General’s report to the Minister were the proponent’s environmental assessment (that is, the environmental impact statement and species impact statement which I am satisfied the Director-General accepted to be the environmental assessment under cl 8J(2) of the 2005 Amendment Regulation), the advice provided by public authorities on the project and the RTA’s response to issues raised in the submissions. By “include”, the applicant submitted that s 75I(2) meant that a hard copy of the proponent’s environmental assessment and the RTA’s response to issues raised in the submissions had to be included in the Director-General’s report (but not necessarily the advices, because s 75I(2)((b) did not require a “copy” of the advices to be included). Further, that the Director-General was required physically to deliver the Director-General’s report (including hard copies of the proponent’s environmental assessment and the RTA’s response to issues raised in the submissions) to the Minister in order to comply with s 75I(1) and (2).

88 The applicant submitted that the report did not include a copy of the environmental impact statement and species impact statement or the RTA’s response to the submissions, but a mere reference to the Department of Planning’s website where copies of those documents could be accessed. Such a reference was insufficient. The Minister admitted that he had not downloaded the documents on 20 or 21 December 2005, and ought to be inferred not to have done so at any earlier time. If documents can be given by electronic means, the applicant submitted that they are not given by uploading the documents on the web site, but by the Minister downloading the documents (see WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94 and Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575). In any event, the Department’s website did not include appendices B, C, K, L and M to the submissions report because, as Mr Baker had said, those documents were too large to upload.

89 In respect of the sixth claim, the applicant submitted that the Minister had not been given (or read) the RTA’s response to the submissions, even though the Director-General had considered the RTA’s response appropriate to be included in the Director-General’s report (see s 75I(2)(f)), and that the Director-General’s report could not be properly understood absent the RTA’s response to the submissions.

90 The applicant submitted further that the Minister was obliged to consider each of those documents, but did not do so (by reason of the fact that the Director-General had not given the documents to the Minister as required).

91 Accordingly, the applicant said that the Director-General had not given a report to the Minister within the meaning of s75I, and the Minister had not considered such a report as required by s 75J(2)(a). The consideration of those documents by officers of the Department could not constitute consideration by the Minister, having regard to the non-delegable nature of the Minister’s obligation under s 23(8)(a1) (see Tickner and Others v Chapman and Others (1995) 57 FCR 451). The Minister also had not considered advice provided by the Minister having portfolio responsibility for the RTA as required by s 75J(2)(b). All of those matters constituted “environmental assessment requirements under this Division” within the meaning of s 75J(1)(b). Hence, the pre-conditions to the exercise of power by the Minister to approve the project had not been met.

(1) The Director-General, by the website references, had included in the Director-General’s report a copy of the environmental impact statement and species impact statement and the RTA’s response to the submissions in the report. The context in this matter was different from that addressed by the High Court in both WACB v MIMIA and Dow Jones v Gutnick . See also s 153(1)(c) of the EPA Act and the Electronic Transactions Act 2000 (as well as s 122H of the EPA Act, cl 8G of the 2005 Amendment Regulation, and the definition of “document” in s 21 of the Interpretation Act 1987 and the Dictionary to the Evidence Act 1995). The website references were sufficient to include the documents in the report (by analogy, see Dainford Limited v Smith and Another (1984) 155 CLR 342 at 348 and Pine Rivers Shire Council v Dorfler (1993) 80 LGERA 315 at 320).

165 I am satisfied that an extract from the environmental impact statement (pp 6-1 to 6-36) and the environmental impact statement summary brochure (see the description at [20] above) were before the Minister on 20 and 21 December 2005, because those documents were part of file S99/01179-6 delivered to the Minister by the Director-General. For the same reason as set out above with respect to the advices from public authorities, I do not accept the applicant’s submission that I should infer that “the Minister did not read the file at all”. Hence, the applicant has not discharged its onus in respect of any failure on the part of the Minister to consider the summary brochure and the environmental impact statement extract, as contained in file S99/01179-6.

166 For the reasons given above, I consider that s 75J(2)(a), construed in context, required the Minister in this case to consider the Director-General’s report as referred to in s 75I(1) and the advices as referred to in s 75I(2)(b). I am satisfied the Minister did so. There was no preferred project report or panel report. The Minister was not obliged to consider the proponent’s environmental assessment as referred to in s 75I(2)(a), but that environmental assessment was to be included in the Director-General’s report in the sense I have indicated (which was done). In consequence, I am satisfied that the applicant’s challenges based on breach of s 75I(1) and (2) and s 75J(2)(a) and (b) (and, hence, s 75J(1)(b)) cannot be upheld.

Matters related to the third and fourth claims

167 Given the conclusions reached above, many of the issues agitated by the parties do not arise. Nevertheless, it is appropriate that I express my conclusions about the matters that were fully argued before me.

Reliance on summaries

168 The applicant submitted that the Minister was obliged personally to consider the advices from public authorities, submissions report and proponent’s environmental assessment, and could not rely on consideration by others. The applicant particularly relied on Tickner v Chapman to support these submissions, as well as Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 38 per Mason J.

169 As observed by Mason P in Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381 at [211], the reasoning in Tickner v Chapman does not exclude the capacity for a decision-maker to consider a matter by relying upon another person’s description or summary of the matter. As the decision of the trial judge in that matter ( Chapman and Others v Ticknerand Others (1995) 55 FCR 316) disclosed, the facts were unusual. The Minister was obliged to consider the “representations attached to the report”. In a statement of reasons for the decision, there was no reference to the representations having been considered. The Minister was told only that the representations (which were in a sealed envelope) contained nothing inconsistent with the report (at 354 and 355). The report, while influenced by the representations, did not disclose their substance, but annexed the sealed envelopes as a confidential exhibit (at 361).

170 On the appeal, Black CJ said that the Minister’s personal obligation to consider the representations did not mean that the Minister was denied the assistance of staff in so doing, and he “would not rule out the possibility of some representations being quite capable of effective summary”, whilst others may not (at 464F). Burchett J expressed a similar view at 476D-G, as did Kiefel J at 494A (albeit qualified at 495G and 497D). Observations to similar effect were made by the Privy Council in James Edward Jeffs and Others v New Zealand Dairy Production and Marketing Board and Others [1967] AC 551 at 569A and Minister for Aboriginal Affairs and Torres Strait Islander Affairs v State of Western Australia and Others (1996) 67 FCR 40 at 61D-E, (which are more apt to apply to the circumstances here than the well known observations about Ministerial reliance on departmental efforts in Bushell and Another v Secretary of the State for the Environment [1981] AC 75 at 95, Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 30 – 31 per Gibbs CJ, 61, 65-66 per Brennan J, O’Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1983) 153 CLR 1 at 11 per Gibbs CJ, FAI Insurances Limited v The Honourable Sir Henry Arthur Winneke and Others (1982) 151 CLR 342 at 416-417 per Brennan J, and Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 at 368).

171 The facts in Tickner v Chapman are not analogous to the present case. The matters the applicant submitted that the Minister was required to consider (the advices, the submissions report and the proponent’s environmental assessment) were not confidential documents. I accept that Mr Baker had read them all. I accept that Mr Baker discussed with the Director-General the contents of the draft report he had prepared for the Director-General on at least three occasions. The Director-General’s report referred to these documents. The submissions report and proponent’s environmental assessment are dealt with extensively throughout the Director-General’s report, which I infer was read by the Minister. The outcomes of what I infer to be ongoing consultations with the public authorities about their initial written advices are also described and assessed in that report. As noted, I construe s 75J(2)(a) as requiring the Minister to consider the substance of these final “advices”.

172 After the evidence had closed, the applicant handed up a table in submissions said to identify the matters covered in the environmental impact statement, species impact statement and submissions report which were not addressed, or not adequately addressed, in the Director-General’s report. The applicant’s counsel identified the purpose of this document as going only to the question of relief. Specifically, it was said that “it relates to any submission that might be put that if your Honour finds that these are directory provisions that require substantial compliance but not complete compliance then the question whether there had been substantial compliance can be answered by demonstrating the Minister didn’t just have a full and complete summary and discussion of all these issues in the Director-General’s report”. The respondents said that if “it is now belatedly being alleged that there was such a deficiency and if that is the case we are not aware of it being expressly pleaded in the points of claim and we would object to the matter being put in that way now”.

173 I think it is clear from the points of claim that the applicant’s case was framed as a failure to consider solely by reason of the relevant documents not having been included in the Director-General’s report. If the provision of the table is an invitation to me to compare each page of the environmental impact statement, species impact statement and submissions report with the Director-General’s report, and conclude that the Director-General’s report was inadequate to discharge the Minister’s obligation of consideration, I decline to do so. The point was not pleaded. The applicant raised it for the first time in its closing submissions. It would require me, absent any submissions from the respondents (or from the applicant other than the handing up of the table), to analyse much of the environmental impact statement and species impact statement (estimated to contain over 3000 pages), as well as the Director-General’s report, to ascertain the accuracy of the table and the materiality of the matters it contains. Moreover, my cursory comparison of the table with the Director-General’s report discloses matters which I would expect to have been the substance of submissions by the respondents (had they been given notice of the contents of the table). For example, the first item says that groundwater issues were identified in the environmental impact statement but that there was no detailed identification of these issues or effectiveness of mitigation measures in the Director-General’s report, and provides a reference to p 7 of that report. However, groundwater is dealt with in the fact sheet behind the Ministerial briefing note and pp 6, 7 and 31 of the main body of the Director-General’s report, as well as in considerable detail in the statement of commitments forming part of the conditions of approval (item 18 at pp 15 to 16 of that attachment) which were attached to the Director-General’s report. The table does not appear to have been prepared having regard to the totality of the Director-General’s report. In all of these circumstances, I uphold the respondents’ objection to the applicant’s reliance on the table. I have marked the table for identification and will retain it on the Court’s file.

174 The Director-General’s report contained extensive references to the environmental impact statement, species impact statement and submissions report. There is no basis for me to find that the Director-General’s report was other than a reliable and accurate summary of the material aspects of the environmental impact statement, species impact statement and submissions report. Moreover, the Minister had the benefit of the whole of file S99/01179-6, which also contained the environmental impact statement summary brochure, the extract from the environmental impact statement, as well as correspondence from members of the public pointing out alleged inadequacies in the environmental impact statement.

175 I do not accept the applicant’s submission that the environmental impact statement extract in the file was meaningless absent identification of its provenance. The extracts, on their face, identify their provenance as the Tugun Bypass environmental impact statement. Equally, the fact that the summary brochure was not part of the environmental impact statement does not make that document irrelevant to this issue of fact. In particular, I infer that the authors of the environmental impact statement prepared the summary brochure, and that the summary of the environmental impact statement therein was accurate.

176 For the above reasons, I find that, in the Minister considering the material contained in file S99/01179-6, including the Director-General’s report, the Minister also considered the proponent’s environmental assessment, the submissions report (and the advices provided by public authorities).

Section 75J(1)(b)

177 The applicant submitted that s 75J(1) created jurisdictional facts and that each of the breaches the applicant had alleged meant that the “environmental assessment requirements under this Division with respect to the project” had not been complied with. The respondents did not address the jurisdictional fact argument (which they said did not arise) and submitted that the “environmental assessment requirements under this Division with respect to the project” as referred to in s 75J(1)(b) referred only to the requirements in s 75F. As I did not have the benefit of full argument on the jurisdictional fact issue, it is inappropriate for me to express a conclusion in that respect.

178 I also hesitate to express any concluded view about the meaning of “environmental assessment requirements under this Division…” in s 75J(1)(b), when I have not found breach. Without adopting the applicant’s expansive approach, I apprehend that the respondents may place too much weight on the reference to “environmental assessment requirements” in s 75F and too little on the general heading to Div 2 (Environmental assessment and approval of projects) and the words “…under this Division with respect to the project” in s 75J(1)(b). Those words suggest a process rather than the environmental assessment requirements imposed by the Director-General under s 75F. Further, given that the Director-General must accept (or not) the proponent’s environmental assessment, it is not clear to me why s 75J(1)(b) would elevate compliance with these requirements above other aspects of the process. My tentative view is that s 75J(1)(b) cannot be read as narrowly as the respondents contend.

Section 75X(5)

179 The respondents submitted that if I found any breach, s 75X(5) would cure all. The applicant submitted that such a conclusion would offend basic principles of construction and set the rule of law aside. The applicant referred to Association for Berowra Creek Inc v Minister for Planning and Another (2003) 124 LGERA 99 at [53] to [55] in which his Honour construed an equivalent provision (s 102) as limited to procedural requirements. While it is not mentioned in his Honour’s reasons, the explanatory note that accompanied the bill introducing s 102 states that it provided for “the identification of mandatory procedural requirements concerning State significant development”.

180 Section 75X(5) may be a response to observations about the “resonating silences” of most legislation with respect to the consequences of breach ( Carroll and Others v Mijovich and Others (1991) 25 NSWLR 441 at 449C per Kirby P). The intent of the section is far from clear. The common law had moved beyond the mandatory/directory distinction before s 75X(5) was enacted ( Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [92]-[93]). The respondents’ submitted that the use of the word “only” in the provision carried a necessary corollary (that is, breach of all requirements of Pt 3A other than those relating to the public availability of an environmental assessment cannot lead to invalidity).

181 The primary difficulty with the respondents’ submission is that it is at odds with the strictures of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [32], [35] and [65]. As in Plaintiff S157/2002 , the respondents’ submission places a construction on s 75X(5) and “asserts that all other provisions may be disregarded”.

182 Section 75X(5) does not clearly identify the consequences of breach of provisions, other than (perhaps) those relating to public availability of the environmental assessment. It is not the equivalent of the provisions considered in Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57 (which did not exclude judicial review in any event) or Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212. Further, the respondents’ submission that the words “validity of an approval” mean that the conclusions reached in Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707 necessarily apply to s 75X(5) (that is, that the provision protects against jurisdictional error but subject to the Hickman principles – The King v Hickman and Others; Ex parte Fox and Another; The King v Hickman and Others; Ex parte Clinton and Others (1945) 70 CLR 598 is unpersuasive. The provisions are different.

183 In reconciling s 75X(5) with the balance of Pt 3A, it is apparent that the respondent’s submissions about its meaning should be rejected. If the section operated as the respondents contend, then query the role of s 75T for critical infrastructure projects and s 75X(4) generally. As the applicant submitted, s 75T contemplates the continued efficacy of ss 122 to 124 of the EPA Act, and that challenges to approvals may be brought (albeit by a limited class of persons) on grounds other than a failure to make a proponent’s environmental assessment publicly available.

184 The applicant’s submissions on s 75X(5) are persuasive. That is, the section is to be construed as an expression of Parliament’s intention that the only provision breach of which will necessarily lead to invalidity is s 75H(3). The consequences of breach of all other provisions, however, are left at large. A far clearer expression of Parliamentary intention than an implied negative corollary arising from the word “only” would be required to effect any other meaning. As such, the consequences of breach of all other provisions will be determined in the ordinary course consistent with the principles laid down in Project Blue Sky . As I have not found breach of any provision and was not provided with submissions on the application of the Project Blue Sky principles to any particular breach alleged, I need and should not say any more on this aspect of the matter.

Seventh and eighth claims

185 The applicant claimed that cl 8J(3) of the 2005 Amendment Regulation was invalid and, if valid, inapplicable on the facts of this matter. Insofar as relevant to this matter, cl 8J(3) is part of a scheme in the regulations enabling the Director-General to accept requirements issued under Div 4 of Pt 5 as environmental assessment requirements under Pt 3A, a Div 4 of Pt 5 environmental impact statement as an environmental assessment under Pt 3A, and a period of public exhibition of such a statement as a period of public availability under s 75H(3). The 2005 Amendment Act (Sch 1, [27]) repealed Div 4 of Pt 5. A feature of Div 4 of Pt 5 (s 115B) was that a proponent had to complete substantial steps before the proponent could seek the Minister’s approval. Those steps included obtaining and publicly exhibiting the environmental impact statement. That is what occurred here. Hence, cl 88 of Sch 6 to the EPA Act (inserted by the 2005 Amendment Act) was inapplicable, and cl 8J(1) to (3) relied upon instead by the Director-General.

186 The 2005 Amendment Regulation explanatory note identified various sources of power for its making (ss 75Z, 157 and Sch 6, cl 1(1)). The parties’ submissions concerned Sch 6, cl 1(1) to the EPA Act (amended by the 2005 Amendment Act, Sch 6, [15], to include reference to that Act as one where the regulations may contain provisions of a savings or transitional nature consequent on its enactment). As Div 4 of Pt 5 was repealed by the 2005 Amendment Act, the application of cl 8J(3) to such matters was necessarily confined to steps commenced under Div 4 of Pt 5 prior to the coming into force of Pt 3A. I will not deal with any respects in which cl 8J(3) might be beyond power other than those argued. This is appropriate given the potential application of s 32 of the Interpretation Act 1987.

187 First, the applicant submitted that cl 8J(3) was not consequent on the enactment of the 2005 Amendment Act as required by cl 1(1) of Pt 1 of Sch 6 to the EPA Act (given effect by s 159). “Consequent on” signifies a causal relationship. Regulations are consequent on the 2005 Amendment Act if made because of it. Such regulations must be “of a savings or transitional nature”. Such regulations may be inconsistent with the provisions of Sch 6 relating to the 2005 Amendment Act (Sch 6, cl 87).

188 The key fact here is that the 2005 Amendment Act repealed Div 4 of Pt 5. Although there are differences between the provisions of Pt 5 and Pt 3A (as identified in the applicant’s points of claim at para 48b), the scheme of which cl 8J(3) forms part is able to be characterised as of a savings and transitional nature consequent on the enactment of the 2005 Amendment Act. Clause 8J(1) to (3) enabled the pre-approval steps taken prior to the repeal of Pt 5 Div 4 to be “saved”. It thereby provided a transition to the balance of the provisions of Pt 3A. Regulations of a savings or transitional nature, by definition, will save some things under the repealed law and provide a transition to other things under the new law. A purpose of such a provision is likely to be (as here) establishing a regime so that things done under the old law need not be done again under the new law. Clause 8J(3), in its application to public exhibition of an environmental impact statement to which Div 4 of Pt 5 would have applied (but for its repeal), falls within the description in cl 1(1) of Sch 6.

189 Secondly, the applicant submitted that cl 8J(3) was inconsistent with Pt 3A because of the process differences between Pt 3A and Pt 5. As part of that submission, the applicant referred to s 75L(2) and (3). The applicant submitted that if cl 8J(3) were relied on with respect to a Pt 4 designated development, then objectors to that development would not have a right of appeal as they would not have made a submission under s 75H. Hence, cl 8J(3) was inconsistent with s 75H(3) and s 75L. Sections 75L(2) and (3) were inapplicable in this case because they apply only if a project, but for Pt 3A, would have been designated development under Pt 4 of the EPA Act. The Tugun Bypass project was not such a project. The steps taken in respect of the Tugun Bypass project were under Pt 5, not Pt 4. These facts make this aspect of the applicant’s argument hypothetical.

190 The hypothetical quality of this argument creates potential difficulties. For example, given that the terms of cl 8J(3) enable the Director-General to accept a period of public exhibition of a Pt 4 designated development environmental impact statement as the period of public availability under s 75H(3), a person who made a submission as required under Pt 4 may well fall within s 75L(2). Further, and as the respondents submitted, if there were any inconsistency between cl 8J(3) and s 75L(2) and (3), it prima facie could be resolved by application of s 32 of the Interpretation Act 1987. The reading down of any excess of power with respect to steps taken under Pt 4 of the EPA Act could not be characterised as radically altering the provision in its application to the repealed Div 4 of Pt 5 (in respect of which, no such potential inconsistency can arise). The clause thus confined, would operate precisely as drafted with respect to the nominated steps under the repealed Div 4 of Pt 5. Hence, if necessary, the provision could be read down ( El Cheikh v Hurstville City Council and Others (2002) 121 LGERA 293 at [37] to [42]).

191 Part of the same reasoning answers the submission about s 75X(5). Section 159 and Sch 6 are a part of the EPA Act, as is s 75X(5). Section 75X(5) (and indeed all provisions of Pt 3A) cannot be construed in isolation from the fact that the legislature, through s 159 and cl 1(1) of Sch 6, expressly authorised savings and transitional regulations to be made consequent on the 2005 Amendment Act. In that context, contrary to the applicant’s submissions, the operation of cl 8J(3) with respect to the nominated steps taken under the repealed Div 4 of Pt 5 is not repugnant to s 75X(5) or s 75H(3).

192 The applicant submitted (but did not plead) that the relationship between cl 8J(3) and the 2005 Amendment Act was so exiguous “that it could not reasonably have been adopted as a means of fulfilling the statutory object” ( The State of South Australia v Tanner and Others (1989) 166 CLR 161 at 178-179). In my view, in its application to the nominated steps taken under the repealed Div 4 of Pt 5, cl 8J(3) answers the statutory description in cl 1(1) of Sch 6 to the EPA Act. The present case provides a good example of the aptness of cl 8J as a savings and transitional provision for that purpose. The environmental impact statement had been prepared. It had been exhibited for nearly three months. Pt 3A then commenced. Div 4 of Pt 5 was repealed. To enable the Pt 5 processes to be saved and facilitate a transition to Pt 3A was reasonable and proportionate.

193 The applicant submitted that cl 8J(3) had no operation with respect to the project once the RTA lodged the application under Pt 3A on 10 October 2005. By that act, the applicant submitted, the transition had been completed and/or a fresh application had been made which was subject to Pt 3A as a whole.

194 The submission overlooks the fact that the 2005 Amendment Act not only inserted Pt 3A into the EPA Act, but also amended cl 1(1) of Sch 6 to enable regulations to be made of a savings and transitional nature consequent on the enactment of the 2005 Amendment Act. The lodgement of the application under s 75E did not necessarily bring the full weight of Pt 3A to bear upon the project which had commenced in the context of Div 4 of Pt 5 being in force. There remained scope for s 159, cl 1(1) of Sch 6, and regulations made pursuant thereto, to operate. In this case, the facts enabled the Director-General to “save” aspects of the process under Pt 5, which would otherwise have been set at naught by the repeal of Div 4 of Pt 5. The Director-General did so. The applicant’s inapplicability argument should not be accepted.

195 It follows that I do not accept the arguments of the applicant with respect to the invalidity and inapplicability of cl 8J(3).

Conclusions and orders

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Citations

Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396

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CITATION:	Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396
PARTIES:	APPLICANT Tugun Cobaki Alliance Inc FIRST RESPONDENT Minister for Planning SECOND RESPONDENT Roads and Traffic Authority of New South Wales
FILE NUMBER(S):	40227 of 2006
CORAM:	Jagot J
KEY ISSUES:	Judicial Review :- Construction and Interpretation - Minister's approval under Pt 3A - validity - relevant considerations - savings and transitional regulation - inconsistency with Act - validity
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Pt 3A, Pt 4, Pt 5 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005 Environmental Planning and Assessment Amendment (Major Projects – Transitional Provisions) Regulation 2005 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy No 14 – Coastal Wetlands State Environmental Planning Policy No 63 - Major Transport Projects Threatened Species Conservation Act 1995
CASES CITED:	Association for Berowra Creek Inc v Minister for Planning and Another (2003) 124 LGERA 99; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; Bruce v Cole and Others (1998) 45 NSWLR 163; Bushell and Another v Secretary of State for the Environment [1981] AC 75; Carroll and Others v Mijovich and Others (1991) 25 NSWLR 441; Citron v Zündel (No 4) (2002) 41 CHRR D/274 (unreported, CHRT, Chairperson C Pensa, Member R Devins, 18 January 2002); Chapman and Others v Tickner and Others (1995) 55 FCR 316; Dainford Limited v Smith and Another (1984) 155 CLR 342; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; El Cheikh v Hurstville City Council and Others (2002) 121 LGERA 293; FAI Insurances Limited v The Honourable Sir Henry Arthur Winneke and Others (1982) 151 CLR 342; Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353; James Edward Jeffs and Others v New Zealand Dairy Production and Marketing Board and Others [1967] AC 551; Jones v Dunkel and Another (1959) 101 CLR 298; Jones v Toben [2002] FCA 1150; Kevin R Whelpton & Associates (Aust) Pty Ltd and Another v Attorney-General (Cth) 14 FCR 293; Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277; Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; Maunsell v Olins [1975] AC 373; Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24; Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381; Minister for Aboriginal Affairs and Torres Strait Islander Affairs v State of Western Australia and Ors (1996) 67 FCR 40; No Dump Residents Association Inc v Collex Pty Limited [2006] NSWCA 94; O’Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1983) 153 CLR 1; Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319; Pine Rivers Shire Council v Dorfler (1993) 80 LGERA 315; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; Prineas v Forestry Commission of New South Wales and Others (1984) 53 LGRA 160; Prineas v Forestry Commission of New South Wales and Others (1984) 49 LGRA 402; Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; The State of South Australia v Tanner and Others (1989) 166 CLR 161; The King v Hickman and Others; Ex parte Fox and Another; The King v Hickman and Others; Ex parte Clinton and Others (1945) 70 CLR 598; Tickner and Others v Chapman and Others (1995) 57 FCR 451; Transport Action Group Against Motorways Inc v Road and Traffic Authority and Another (1999) 46 NSWLR 598; WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94; Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707
DATES OF HEARING:	26/06/2006, 27/06/2006 (hearing) 30/06/2006, 04/07/2006, 10/07/2006 (further written submissions)
DATE OF JUDGMENT:	07/14/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr T Robertson SC with Ms L Byrne SOLICITORS Environmental Defenders' Office Ltd FIRST RESPONDENT Dr J Griffiths SC with Mr J Kirk SOLICITORS Department of Planning SECOND RESPONDENT Mr N Williams SC with Mr A Galasso SOLICITORS Blake Dawson Waldron

[2006] NSWLEC 396

14/07/2006