Walker v Minister for Planning - [2007] NSWLEC 741

No judgment structure available for this case.

Reported Decision: [2008] NSWCA 224
157 LGERA 124

Land and Environment Court

of New South Wales

CITATION: Walker v Minister for Planning [2007] NSWLEC 741
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Jill Walker
FIRST RESPONDENT:
Minister for Planning
SECOND RESPONDENT:
Stockland Development Pty Ltd
ABN 71 000 064 835
THIRD RESPONDENT:
Anglican Retirement Villages- Diocese of Sydney
ABN 39 922 848 563

FILE NUMBER(S): 40240 of 2007

CORAM: Biscoe J

KEY ISSUES:
Judicial Review :- whether Minister's approval of concept plan for project and associated determinations under ss 75O(2) and 75P(1) in Part 3A of Environmental Planning and Assessment Act 1979 void - whether Minister obliged, and failed, to consider findings and recommendations in report of Commission of Inquiry as required by s 75O(2)(c) - whether Minister obliged, and failed, to consider principles of ecologically sustainable development and the impact of the proposal upon the environment including as to whether impacts of proposed flood constrained coastal plain project would be compounded by climate change flood risk - whether Minister deferred essential matters for later consideration or the concept plan approval lacked finality and whether those principles applicable to concept plan approval under Part 3A
Ecologically Sustainable Development (ESD): - whether Minister's concept plan approval and associated determinations under ss 75O(2) and 75P(1) in Part 3A of Environmental Planning and Assessment Act 1979 void because Minister failed to take into account ESD and impact of proposal on environment - whether ESD mandatory consideration - whether Minister failed to consider ESD principles by not considering whether impacts of proposed flood constrained coastal plain project would be compounded by climate change – whether Minister failed to consider ESD principles re impact of proposal on Endangered Ecological Communities because there was no up to date mapping to verify their extent and nature

LEGISLATION CITED: Coastal Protection Act 1979 ss 3(b), 37A, 54A
Constitution Act 1902 (NSW), s 35CA
Energy Services Corporation Act 1995, ss 5, 8
Environmental Planning and Assessment Act 1979, Pt 3A and ss 4, 5, 76A, 79C, 119
Environmental Planning and Assessment Regulation 2000, cl 8B, Schedule 2 cl 6(1)
Fire Brigades Act 1989, s 10A
Fisheries Management Act 1994, ss 3, 7E, 57, 143
Interpretation Act 1987, s 34
Land and Environment Court Act 1979, s 39(4) and (2)
National Parks and Wildlife Act 1974, s 2A(2)
Protection of the Environment Administration Act 1991, s 6(2)
Rural Fires Act 1997, ss 3 and 9
State Environmental Planning Policy (Major Projects) 2005
Sydney Harbour Foreshore Authority Act 1998, s 15
Water Management Act 2000, s 3

CASES CITED: Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480;
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223;
Attorney-General (NSW) v Quin (1990) 170 CLR 1;
Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100;
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Azriel v NSW Land and Housing Corporation [2006] NSWCA 372;
Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450;
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234;
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237;
Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651;
BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210;
Calvert Cliffs’ Coordinating Commission v US Atomic Energy Commission 449 F. 2d 1109;
Carstens v Pittwater Council (1999) 111 LGERA 1;
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459;
City of Unley v Claude Neon Ltd (1983) 49 LGRA 65;
Country Energy v Williams (2005) 63 NSWLR 699, 141 LGERA 426;
Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd (1934) 52 CLR 85;
Dimmock v Secretary of State for Education and Skills [2007] EWHC 2288;
Drake-Brockman v Minister for Planning [2007] NSWLEC 490;
F & D Bonaccorso Pty Ltd v City of Canada Bay Council [No 2] [2007] NSWLEC 537;
Farah v Warringah Council [2006] NSWLEC 191;
Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149;
Foster v Minister for Customs and Justice (2000) 200 CLR 442;
Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 93 LGERA 249;
Gales Holdings Pty Ltd v Tweed Shire Council (2006) 146 LGERA 236;
Gray v The Minister for Planning (2006) 152 LGERA 258;
Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1994) 86 LGERA 143;
Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43;
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277;
Leatch v National Parks and Wildlife Services (1993) 81 LGERA 270;
Massachusetts v Environmental Protection Agency (2007) 127 S.Ct. 1438;
McDougall v Warringah Shire Council (1993) 30 NSWLR 258;
Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435;
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323;
Mison v Randwick Municipal Council (1991) 23 NSWLR 734;
Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122;
Murrumbidgee Groundwater Preservation Association Inc v Minister of Natural Resources (2005) 138 LGERA 11;
Nicholls v Director-General of National Parks and Wildlife (1994) 84 LGERA 397;
Parramatta City Council v Hale (1982) 47 LGRA 319 ;
Parramatta City Council v Pestell (1972) 128 CLR 305;
People of the State of California v General Motors Corporation and Ors (2007) WL 2726871;
Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ;
Providence Projects Pty Ltd v Gosford City Council (2006) 147 LGERA 274;
Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd [2007] QCA 338;
Re Xstrata Coal Queensland Pty Ltd and Ors [2007] QLRT 33;
Save our Street Inc v Settree (2006) 149 LGERA 30;
Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59;
Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10;
Thornton v Adelaide Hills Council (2006) 151 LGERA 1;
Town Planning Board v Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396;
Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR;
Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396. ;
Tuna Boat Owners Association of SA Inc v Development Assessment Commission (2000) 110 LGERA 1;
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376;
Weal v Bathurst City Council (2001) 111 LGERA 181;
Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage (2006) 232 ALR 510;
Winn v Director-General National Parks and Wildlife (2001) 130 LGERA 508;
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 18 and 19 September 2007

DATE OF JUDGMENT:
27 November 2007

LEGAL REPRESENTATIVES: APPLICANT:
Mr M H Baird and Mr G Young, barristers
SOLICITORS:
Environmental Defender's Office

FIRST RESPONDENT:
Ms S Duggan and Mr M Seymour, barristers
SOLICITORS:
Department of Planning
SECOND RESPONDENT:
Mr P R Clay, barrister
SOLICITORS:
Herbert Geer & Rundle
THIRD RESPONDENT:
Mr T G Howard, barrister
SOLICITORS:
Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

27 November 2007

40240 of 2007

JILL WALKER v MINISTER FOR PLANNING AND ORS.
JUDGMENT

1 HIS HONOUR: The applicant challenges the validity of a concept plan approval by the Minister for Planning, the first respondent, under s 75O(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and ancillary determinations under s 75P(1)(a) and (b). The concept plan, which was approved on 21 December 2006, is for a residential subdivision and a retirement development on approximately 25 hectares at Sandon Point. The two proponents of the concept plan are Stockland Development Pty Ltd and Anglican Retirement Villages – Diocese of Sydney, respectively the second and third respondents.

2 There are three grounds of challenge:

ESD

3 The area known as Sandon Point comprises about 53 hectares of mostly cleared coastal plain 14 kilometres north of Wollongong City between Bulli to the south and Thirroul to the north. The concept plan is for the development of the western part of Sandon Point comprising five lots owned by Stockland Development Pty Ltd and Cookson Plibrico Pty Ltd. The western boundary of the proposed development site is a length of the Illawarra Railway line. The eastern boundary abuts parcels of land that back onto Macauley’s Beach.

The statutory scheme

4 Part 3A of the EPA Act applies to major infrastructure and other significant development proposals in New South Wales. It was introduced by the Environmental Planning and Assessment Amendment (Infrastructure and other Planning Reform) Act 2005 and came into force on 1 August 2005. It has been amended on a number of occasions. The relevant version of Part 3A, which applied at the time that the application for concept plan approval was lodged on 15 June 2006 and up to the date of approval on 21 December 2006, pre-dates significant changes which came into force on 12 January 2007. A person is prohibited from carrying out a development that is a project to which Part 3A applies unless the Minister has approved of the carrying out of the project: s 75D. “Project” is defined to mean “development” that is declared under s 75B to be a project to which Part 3A applies: s 75A.

5 Part 3A recognises a two part process. First, the approval of a concept plan which the Minister may authorise or require the proponent to submit: Division 3. Second, the approval of a project application: Division 2. As part of the process of approval of a concept plan, the Director-General’s environmental assessment requirements may require the proponent to include in the assessment a statement of “commitments” that the proponent is prepared to make for environmental management and mitigation issues on the site: s 75F incorporated by s 75N. In approving a concept plan, the Minister may require further assessment of aspects of the development: s 75P(1)(a); may determine that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of the Act: s 75P(1)(b); or may determine that no further environmental assessment is required for the project or any particular stage of the project: s 75P(1)(c). In the case of Sandon Point, the Minister has determined that further project approvals are required: approval of any development over $5 million is to be determined by the Minister under Part 3A; approval of any development under that amount is to be determined by under Part 4 or Part 5. Council approval under Part 4 must “be generally consistent with the terms of the approval of the concept plan”: s 75P(2)(a).

6 More particularly, the process of environmental assessment and approval to carry out a project under Part 3A is governed by s 75B and Division 2 (ss 75D – 75L) which prescribe the following elements:

75B Projects to which Part applies

(1) General

(a) by a State environmental planning policy, or
(b) by order of the Minister published in the Gazette (including by an order that amends such a policy).

The carrying out of particular or a class of development, or development for a program or plan of works or activities, may be so declared.
(2) Kinds of projects

The following kind of development may be declared to be a project to which this Part applies:

(a) major infrastructure or other development that, in the opinion of the Minister, is of State or regional environmental planning significance,
(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.

g) the Minister may approve or disapprove of the carrying out of the project with such modifications or any such condition as the Minister may determine: s 75J, which provides:

75J Giving of approval by Minister to carry out project

7 The Minister may approve an antecedent concept plan for the project under Division 3 (ss 75M – 75Q) of Part 3A, which incorporates ss 75F – 75I. At the relevant time, Division 3 included the following provisions:

75M Submission of concept plan for project

(2) The concept plan is to:

(4) If an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, the obligation may be satisfied for a project by the submission and approval of a concept plan in respect of the land concerned (but only if the Minister authorises or requires the submission of the concept plan).
75N Environmental assessment, panel report, public consultation and Director-General’s report for concept plan
Sections 75F (Environmental assessment requirements for approval), 75G (Independent hearing and assessment panels), 75H (Environmental assessment and public consultation) and 75I (Director-General’s environmental assessment report) apply, subject to the regulations, with respect to approval for the concept plan for a project in the same way as they apply with respect to approval to carry out a project.
75O Giving of approval for concept plan
(1) If:

(2) The Minister, when deciding whether or not to give approval for the concept plan, is to consider:

(a) the Director-General’s report on the project and the reports 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.

(4) Approval for a concept plan may be given under this Division with such modifications of the project as the Minister may determine.

75P Determinations with respect to project for which concept plan approved

8 It is relevant in the present case that s 75N applied ss 75F and s 75I to the concept plan approval procedure. Sections 75F and 75I provided:

75F Environmental assessment requirements for approval

(1) The Minister may, after consultation with the Minister for the Environment, publish guidelines in the Gazette with respect to environmental assessment requirements for the purpose of the Minister approving projects under this Part (including levels of assessment and the public authorities and others to be consulted).
(2) 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 such relevant guidelines in respect of the project.
(3) The Director-General is to notify the proponent of the environmental assessment requirements. The Director-General may modify those requirements by further notice to the proponent.
(4) In preparing the environmental assessment requirements, the Director-General is to consult relevant public authorities and have regard to the need for the requirements to assess any key issues raised by those public authorities.
(5) The environmental assessment requirements may require an environmental assessment to be prepared by or on behalf of the proponent in the form approved by the Director-General.
(6) 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.
(7) This section is subject to section 75P.

75I Director-General’s environmental assessment report

“guidelines”

9 Section 119(1)(e) is significant in relation to the first ground of challenge. Paragraph (e) refers to and was introduced by the same act as introduced, Part 3A. Section 119(1) provides:

119 Public inquiry

all or any of the environmental aspects of a project under Part 3A

10 Clause 8B of the Environmental Planning and Assessment Regulation 2000, promulgated pursuant to s 75Z requires the Director-General to include in the s 75I environmental assessment report to the Minister:

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

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

(emphasis added)

11 State Environmental Planning Policy (Major Projects) 2005 (Major Projects SEPP) concerns Part 3A and at the relevant time included the following provisions:

2 Aims of Policy

6 Identification of Part 3A projects

…
…

8 Procedure for addition of new State significant sites

(3) The Director-General is to make arrangements for any such study to be publicly exhibited with an invitation to the public to make written submissions.
(4) The Minister may direct that an inquiry be held as part of the investigation into a potential State significant site.
(5) The Director-General is to provide the Minister with a copy of any such study and any recommendations relating to it.
(6) This clause does not preclude an amendment of Schedule 3 without compliance with this clause.

12 The objects of the EPA Act include encouragement of protection of the environment and encouragement of ESD: s 5(a)(vi) and (vii). ESD is defined in s 4(1) as having the same meaning as it has in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW). The definition of the “environment” in s 4(1) is broad and non-exhaustive: it “includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings”.

BACKGROUND

13 By letter dated 30 October 2002, the Minister for Planning advised the local council that he had declared development at Sandon Point to be State significant under s 76A(7) of the EPA Act. This made the Minister the consent authority: s 76A(9). However, subsections 76A(7) and (9) (inter alia) were repealed in 2005: Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005.

14 On 11 December 2002 the Minister for Planning issued a “Direction under Section 119(1)(b)” of the EPA Act for a Commission of Inquiry to be held in accordance with s 119(1)(b) of the Act into certain land at Sandon Point. In the context of the applicant’s first ground of challenge it is necessary to consider its precise terms, as follows:

, direct that a Commission of Inquiry be held in accordance with

15 Those terms of reference were:

To make recommendations on the preferred land uses, planning outcomes and management options for the land as shown edged heavy black on the map identified as Attachment A (dated November 2002), having regard to its values and constraints in the broader context of the surrounding urban and non urban environment.

16 That map showed land at Sandon Point, including the land which some years later became the land the subject of the application for concept plan approval with which these proceedings are concerned.

17 The Commission of Inquiry provided its report in September 2003. It found that residential development should be restricted to permit the outstanding cultural and ecological values of the site to be preserved. The Commissioners stated in their covering letter to the Minister:

…the CoI area has significant inherent cultural, ecological and social values as indicated by the extensive evidence before the Commission. These values are too important to be compromised by the level of development proposed for residential purposes in Council’s draft DCP or Stockland’s draft Master Plan, notwithstanding the limited availability of land and the importance of providing for additional residential development in the northern Illawarra…The findings and recommendations in this report provide a strategic basis to implement sustainable coastal planning principles, protect significant Aboriginal heritage values, conserve and enhance ecological processes, ensure scarce employment opportunities are maintained, and enable an appropriate level of residential development.

18 On 23 May 2005, Charles Hill of Planning Workshop Australia was appointed by the Minister for Planning to provide an independent review of the findings and recommendations of the Commission of Inquiry. This review did not have any statutory status. Mr Hill’s report recommended a larger development footprint on the Sandon Point lands. Mr Hill recommended that rezoning for development should be allowed on terms that more than 60 percent should be left as open space and brought mostly into public ownership; and that some hectares towards the western boundary should be deemed suitable for medium density residential development, including aged care facilities.

19 On 12 December 2005, the Department of Planning wrote to Wollongong City Council advising that the Minister for Planning had agreed to consider Sandon Point as a potential State Significant Site under the Major Projects SEPP; that it was expected that a concept plan will be lodged under Part 3A of the EPA Act; and that the Minister had agreed to consider both the rezoning and concept plan concurrently.

20 On 6 March 2006, HLA Envirosciences Pty Ltd wrote to the Department of Planning on behalf of the second and third respondents requesting the Minister to declare that the proposed development of Sandon Point was a “major project” pursuant to Part 3A of the EPA Act (see s 75B). It submitted that the development fell within the class of development defined as “major projects” in cl 13 of the Group 5 class of development listed in Schedule 1 to the Major Projects SEPP viz: “Development for the purpose of residential, commercial or retail projects with a capital investment value of more than $50 million that the Minister determines are important in achieving State or regional planning objectives”. If the Minister determined that it was a major project, the letter requested that the Minister also authorise the lodgement of a concept application for the project.

21 On 2 April 2006, the Minister formed the opinion for the purposes of cl 6 of the Major Projects SEPP that the proposed development was of a kind described in Schedule 1 to the Major Projects SEPP and was thus declared to be a project to which Part 3A of the EPA Act applies for the purposes of s 75B of the EPA Act. The record of that opinion was signed by the Minister and was in the following terms:

I, the Minister for Planning, have formed the opinion that the development described in the Schedule below, is development of a kind that is described in Schedule 1 of the State Environmental Planning Policy (Major Projects) 2005 – namely Clause 13, Part 5 – development for the purposes of residential, commercial, or retail projects with a capital investment value of more than $50 million that the Minister determines are important in achieving State and regional planning objectives – and is thus declared to be a project to which Part 3A of the Environmental Planning and Assessment Act 1979 applies for the purpose of Section 75B of that Act.

In forming this opinion, I have also determined that pursuant to Clause 13(1) of Schedule 1 of the State Environmental Planning Policy (Major Projects) 2005 that the development described in the schedule below does satisfy State or regional planning objectives.

Schedule

22 On the same date, the Minister authorised the submission of a concept plan for the Sandon Point site under s 75M.

23 On 24 April 2006, the Director-General of the Department of Planning provided to HLA Envirosciences Pty Limited the Director-General’s environmental assessment requirements with regard to the concept plan. This was in accordance with ss 75F(2) and (3), as applied by s 75N. One of the general requirements was “a draft Statement of Commitments, outlining environmental management, mitigation and monitoring measures”. The covering letter stated that once HLA Envirosciences Pty Ltd lodged its environmental assessment for the concept plan, it would be the subject of a test of adequacy to determine whether it satisfies the Director-General’s requirements. The letter requested that HLA Envirosciences Pty Limited prepare a study to justify the inclusion of Sandon Point as a State Significant Site under the Major Projects SEPP.

24 On 15 June 2006, the second and third respondents submitted a concept plan for the project for the approval of the Minister under s 75O together with an Environmental Assessment for Major Project and State Significant Site Study.

25 By letter dated 19 June 2006, the Director, Strategic Assessments of the Department of Planning advised HLA Envirosciences Pty Ltd that the Environmental Assessment generally satisfied the Director-General’s requirements and that they had commenced the process of exhibiting the Environmental Assessment ( required by s 75H(3) as applied under s 75N). The letter also stated that the State Significant Site Study adequately addressed the matters in cl 8 of the Major Projects SEPP and the letter of 24 April 2006. The Environmental Assessment and the study were placed on public exhibition for comment.

26 In December 2006, the Director-General’s Environmental Assessment Report was prepared in accordance with the requirement of s 75(I) (applied under s 75N). It recommended to the Minister that:

(a) approval be given to the concept plan subject to modifications;
(b) rezoning of Sandon Point be pursued to give effect to the concept plan, given that Sandon Point is a matter of significance for the environmental planning of the State; and
(c) approval to carry out development with a capital investment value of less than $5 million is, pursuant to s 75P(1)(b), to be dealt with under either Part 4 or Part 5.

27 The Director-General’s Environmental Assessment Report considered the Commission of Inquiry’s report and its 80 findings and recommendations. It summarised the four key issues found by the Commission of Inquiry and showed its recommended land use zoning. It also considered the Charles Hill report. It discussed “Key Issues” including creek design and flooding, aboriginal cultural heritage and flora and fauna. It included the following reports:

28 On 21 December 2006, the Minister, having considered the Director-General’s Environmental Assessment Report, made the following determination:

Environmental Planning and Assessment Act 1979

29 The challenge in the present case is to the validity of the approvals referred to in paragraphs (a) and (b) of the Minister’s determination.

30 The project described in Schedule 1 to the Minister’s determination comprised the following:

(iii) 2 superlots for up to 25 town houses;

(iv) potential for development of up to 285 dwellings on the proposed lots;

(i) a residential aged care facility of up to four storeys containing up to 120 beds;

(ii) apartment buildings of up to three storeys containing up to 250 independent living units;

(iii) community facilities and services to support residents of the retirement village.

FIRST GROUND OF CHALLENGE: FAILURE TO CONSIDER MANDATORY RELEVANT CONSIDERATION: FINDINGS AND RECOMMENDATIONS OF COMMISSION OF INQUIRY AS REQUIRED BY Section 75O

31 In order to succeed on the first and second grounds of challenge, the applicant must make good two factual propositions. First, that a relevant mandatory consideration was not taken into account. Second, that the error was material such as to justify the intervention of the Court. It need not be shown to be of critical or decisive significance in the decision; on the other hand, de minimis non curat lex: Parramatta City Council v Hale (1982) 47 LGRA 319 at 335 per Street CJ; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 295 [66] per Basten JA (with whom Handley JA and Hunt AJA agreed). If those two factual propositions are made good, then the concept plan approval and associated determinations are invalid and, subject to discretionary considerations as to the granting of relief, liable to be declared invalid: Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 51 – 52 per Street CJ.

32 Mere advertence to a matter required to be taken into consideration is not sufficient: Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [64] per Spigelman CJ (Meagher, Beazley JJA agreeing). It is well established that the consideration must be “proper, genuine and realistic”: Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450 at [28] per Tobias JA (Beazley JA agreeing). Those epithets need to be applied cautiously lest they encourage a slide into impermissible merits review: Kindimindi at [74] – [79]; Zhang at [62]; Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [49] – [51]; Belmorgan at [76] per Basten JA. In Belmorgan at [77] – [78], Basten JA ascribed meanings to the words “proper” and “genuine” but concluded that “realistic” had no ready meaning in the context of judicial review. The authorities concerning failure to have regard to mandatory considerations were reviewed by me in F & D Bonaccorso Pty Ltd v City of Canada Bay Council [No 2] [2007] NSWLEC 537 at [22] – [32].

33 Section 75X(5) of the EPA Act is not a bar to the applicant’s grounds of challenge based on failure to consider mandatory relevant considerations nor was any submission made that it was a bar: Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396 at [179] - [184] (Jagot J); Gray v Minister for Planning (2006) 152 LGERA 258 at [140] – [144] (Pain J). Section 75X(5) provides: “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 s 75H…” In Tugun at [184] Jagot J held:

…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 .

34 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] it was held (omitting citations):

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute .

35 The first ground of challenge is that the findings and recommendations of the Commission of Inquiry were mandatory considerations under s 75O(2)(c) of the EPA Act and that the Minister did not consider them in relation to Aboriginal heritage, flora and fauna, riparian corridor function and planning, and floodplain management.

36 Section 75O(2)(c) provides:

(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.

37 In my opinion, there are two answers to this ground of challenge. First, the findings and recommendations of the Commission of Inquiry were not mandatory considerations because that was not an inquiry to which s 75O(2)(c) refers. In particular, it was not an inquiry with respect to “the project” the subject of the concept plan which these proceedings are concerned. Second, in any event, the Minister did consider the findings and recommendations of the Commission of Inquiry because they were referred to in the Director-General’s Environmental Assessment Report which was before the Minister.

38 As to the first answer, s 119(1) (set out above at [9]) empowers the Minister to direct that an enquiry be held with respect to five matters. The fifth matter, in s 119(1)(e), is “all or any of the environmental aspects of a project under Part 3A”. The Commission of Inquiry was appointed in 2002 expressly pursuant to the Minister’s direction under s 119(1)(b), not s 119(1)(e): see [14] above. Its terms of reference were not with respect to the proposed development the subject of the concept plan approval. Rather, its terms of reference were “to make recommendations on the preferred land uses, planning outcomes and management options” for certain land at Sandon Point, “having regard to its values and constraints in the broader context of the surrounding urban and non-urban environment”: see [15] above. The Commission of Inquiry reported in 2003. It was not until 2005 that Part 3A and s 119(1)(e), which are obviously related, were enacted. The subject “project”, as defined, referred to in ss 75O(2)(c) and 119(1)(e), did not exist until 2006. That is because “project” is defined by s 75A to mean “a development that is declared under s 75B to be a project”. The subject proposed development was not declared to be a project under s 75B until 2006: see [21] above. Since s 119(1)(e) and Part 3A did not exist until after the Commission of Inquiry reported, it was impossible for the inquiry to have been into “the project”, as defined.

39 In my opinion, the reference in s 75O(2)(c) to “an inquiry be held in accordance with s 119 with respect to the project” is an inquiry pursuant to s 119(1)(e). The language of each of those provisions is identical to the extent that the inquiry is “with respect to” the project or the environmental aspects of the project. There has been no inquiry pursuant to s 119(1)(e) with respect to the subject project.

40 The applicant sought support in an observation by Jagot J in Drake-Brockman v Minister for Planning [2007] NSWLEC 490 that Part 3A does not require steps to be completed in any particular order so that submission of a “scoping paper” for a project, although ineffective when submitted, could be retrospectively constituted as a concept plan when the Minister subsequently authorised submission of a concept plan. The applicant submitted that, equally, it could be said that an inquiry in relation to a development may create obligations under s 75O(2)(c) when that development later came to be considered as a concept plan application under Part 3A. Drake-Brockman is distinguishable. The procedural steps considered in that case were all taken after the enactment of, and fell within, Part 3A and the only complaint was that they were not in the correct sequence. That does not assist the applicant’s proposition in the present case that the appointment of a Commission of Inquiry years before the enactment of Part 3A is an action taken under Part 3A.

41 For these reasons, in my opinion, s 75O(2)(c) did not oblige the Minister to consider the findings and recommendations in the Commission of Inquiry report.

42 The second answer to this ground of challenge, in my opinion, is that, in any event, the Minister did consider the findings and recommendations in the Commission of Inquiry Report. The Director-General’s Environmental Assessment Report refers to the Commission of Inquiry in the context of the history of the planning considerations in respect of the subject land, including consideration of the site before and after the Commission of Inquiry had made its recommendations. In particular, the Director-General’s Environmental Assessment Report recorded that:

[t]his criticism by Council, other landholders and the Department was that the CoI recommendations provided negligible incentives for landowners to develop Sandon Point. For the Department and Council, this would mean Sandon Point would remain undeveloped and the environmental

identified in the COI would never be realised. This seems to be given some credence by the lack of subsequent development

43 Nevertheless, the applicant submitted that, in order for it to be said that the Minister had taken the Commission of Inquiry recommendations and findings into consideration, it was necessary as a threshold for the Director-General’s Environmental Assessment Report to have reproduced its 80 recommendations or findings in a way which enabled the Minister to give “genuine” consideration to whether they should be followed in preference to either the findings of the Charles Hill report or the findings of the Director-General himself. I do not accept that the Director-General did not give “genuine” consideration to the findings and recommendations of the Commission of Inquiry, as well as to the Charles Hill Report.

44 For these reasons, I reject the first ground of challenge.

SECOND GROUND OF CHALLENGE: FAILURE TO CONSIDER MANDATORY RELEVANT CONSIDERATIONS: ecologically sustainable development

45 The second ground of challenge is that the Minister failed to take implied mandatory considerations into account, namely, ESD and the impact of the proposal on the environment, in several respects.

46 The goal of ESD is critical to the survival and well-being of the human race and other species, a view I recently expressed in F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 at [59]. The concept of ESD is to be understood in New South Wales by reference to the principles of ESD in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW), which has been adopted by reference in the EPA Act s 4(1) and in other New South Wales statutes. Before considering those principles and the applicant’s ESD case in detail, I will review the development of the concept and principles of ESD globally and in Australia.

ESD: A Global Phenomenon

47 In the last decade of the twentieth century and the first decade of the twenty-first century, the seed of ESD was planted in numerous Australian statutes and has blossomed in a significant number of cases.

48 This has been part of a global phenomenon. The concept of ESD evolved in a number of documents adopted at international conferences on the environment beginning in 1972 at the United Nations Conference on the Human Environment in Stockholm attended by 113 nations. This Conference created two instruments: the Declaration on the Human Environment which proclaimed 26 principles for international cooperation; and the Action Plan for the Human Environment. Principle 13 of the former touched on ESD as follows:

In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve the environment for the benefit of their population.

49 In 1980, the World Conservation Strategy, prepared by the International Union for Conservation of Nature and Natural Resources (now known as the World Conservation Union), aimed to achieve three main objectives of living resource conservation: to maintain essential ecological processes and life-support systems; to promote genetic diversity; and to ensure the sustainable utilisation of species and ecosystems. This strategy identified the failure to integrate conservation with development as one of the main obstacles to achieving conservation. It made the following legislative proposal (section 11 paras 8 and 9):

50 In response, in 1983, Australia adopted the National Conservation Strategy for Australia: Living Resource Conservation for Sustainable Development. Also in 1983, the United Nations established the World Commission on Environment and Development.

51 In 1987 the World Commission on Environment and Development, established by the United Nations, published an influential report, Our Common Future (commonly referred to as the Brundtland Report), which called for the promotion of sustainable development that would guarantee “the security, well-being and very survival of the planet” (p 23). It defined “sustainable development” as development that meets the needs of the present while not compromising the ability of future generations to meet their own needs (p 8 ). This has come to be known as inter-generational equity and has endured as the fundamental principle of ESD. The report noted that : “The burning of fossil fuels puts into the atmosphere carbon dioxide, which is causing gradual global warming. This greenhouse effect may by early next century have increased average global temperatures enough to shift agricultural production areas, raise sea levels to flood coastal cities, and disrupt national economies” (p 2). The report recognised that the world’s current pattern of economic growth was not ecologically sustainable. It contained proposals for long term environmental strategies for achieving ESD. The report emphasised that the environment and development must no longer be regarded as separate concerns but were interlocked.

52 In response to the Brundtland Report’s recommendations, the “Earth Summit”, the United Nations Conference on the Environment and Development, was held in Rio de Janeiro in June 1992. Its mandate was to “elaborate strategies and measures to halt and reverse the effects of environmental degradation in the context of increased national and international efforts to promote sustainable and environmentally sound development in all countries” (Resolution 44/228 of the United Nations General Assembly 85th Plenary Meeting, 22 December 1989). Australia was among the 172 nations represented. Documents created at the conference included the Rio Declaration which was a statement of 27 general principles; Agenda 21 which was a lengthy action plan; the United Nations Framework Convention on Climate Change; the Convention on Biological Diversity; and an agreed Statement of Principles on Forests. Four of the Rio Declaration principles are substantially reflected in subsequent Australian legislation, namely:

53 The central concept of ESD, the integration of environmental protection and development, appeared in Principle 4. Three of the four principles of ESD - the principle of intergenerational and intra-generational equity, the precautionary principle and the internalisation of environmental costs principle - were embodied in, respectively, Principles 3, 15, and 16. However, Principle 16 was qualified. The fourth ESD principle, the principle of conservation of biological diversity, was reflected in the accompanying Convention on Biological Diversity where Articles 1 and 14 relevantly stated:

(a) Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures;

(b) Introduce appropriate arrangements to ensure that the environmental consequences of its programmes and policies that are likely to have significant adverse impacts on biological diversity are duly taken into account.

54 The role of the law in relation to sustainable development was stated in Principle 11 of the Rio Declaration:

States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and development context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries

55 Agenda 21 described itself as a “blueprint for action in all areas relating to the sustainable development of the planet”. It provided mechanisms, in the form of policy, plans, programs and guidelines, for national governments to apply the principles contained in the Rio Declaration. Chapter 8 of Agenda 21 provided that laws and regulations suited to the conditions of each country were among the most important instruments for transforming environment and development policies into action. Chapter 28 acknowledged the importance of local authorities in furthering ESD and contemplated, among other things, the establishment of Agenda 21 programmes in local government jurisdictions and the implementation of local authority programmes, policies and laws. Principle 10 of the Rio Declaration proclaimed that environmental issues were best handled with informed public participation. Similarly, Agenda 21 in Chapter 23 emphasised that “one of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decision-making”.

56 In 1993, a United Nations Commission on Sustainable Development was created to progressively administer the implementation of Agenda 21. Many nations, including Australia, committed to reporting regularly to the Commission on their actions to achieve sustainable development.

57 The 2000 Millennium Declaration adopted by the United Nations General Assembly identified fundamental values that were essential to international relations in the twenty first century including:

Respect for nature. Prudence must be shown in the management of all living species and natural resources, in accordance with the precepts of sustainable development. Only in this way can the immeasurable riches provided to us by nature be preserved and passed on to our descendants. The current unsustainable patterns of production and consumption must be changed in the interest of our future welfare and that of our descendants.

Millennium Declaration

Protecting our common environment

58 In 2002, the World Summit on Sustainable Development took place in Johannesburg, South Africa, and adopted the Johannesburg Declaration on Sustainable Development and the Johannesburg Plan of Implementation. The former affirmed a will to “assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection – at the local, national, regional and global levels”. Thus, social development came to be highlighted as one of the pillars of ESD, joining economic development and environmental protection.

59 The Global Judges Symposium held in conjunction with the Johannesburg World Summit adopted the Johannesburg Principles on the Role of Law and Sustainable Development. The Symposium agreed four principles to guide the judiciary in promoting the goals of sustainable development through the application of the rule of law and the democratic process:

60 For the realisation of these principles, the Global Judges Symposium proposed that the program of work should include the following:

ESD: Australian Developments

61 Impetus for Australian legislation on ESD came from three 1992 instruments: the Rio Declaration of June 1992; the Intergovernmental Agreement on the Environment between the Commonwealth, States and Territories of Australia and the Australian Local Government Association of May 1992; and the National Strategy for Ecologically Sustainable Development of December 1992.

62 Section 3 of the Intergovernmental Agreement on the Environment provided:

SECTION 3 - PRINCIPLES OF ENVIRONMENTAL POLICY

3.2 The parties consider that the adoption of sound environmental practices and procedures, as a basis for ecologically sustainable development, will benefit both the Australian people and environment, and the international community and environment. This requires the effective integration of economic and environmental considerations in decision-making processes, in order to improve community well-being and to benefit future generations

3.3 The parties consider that strong, growing and diversified economies (committed to the principles of ecologically sustainable development) can enhance the capacity for environmental protection. In order to achieve sustainable economic development, there is a need for a country's international competitiveness to be maintained and enhanced in an environmentally sound manner.

3.4 Accordingly, the parties agree that environmental considerations will be integrated into Government decision-making processes at all levels by, among other things:

(ii) ensuring that there is a proper examination of matters which significantly affect the environment; and

(iii) ensuring that measures adopted should be cost-effective and not be disproportionate to the significance of the environmental problems being addressed.

3.5.1 precautionary principle -

Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by:

(ii) an assessment of the risk-weighted consequences of various options.

the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.

3.5.3 conservation of biological diversity and ecological integrity -

conservation of biological diversity and ecological integrity should be a fundamental consideration.

3.5.4 improved valuation, pricing and incentive mechanisms -

· environmental factors should be included in the valuation of assets and services.

· polluter pays i.e. those who generate pollution and waste should bear the cost of containment, avoidance, or abatement

· the users of goods and services should pay prices based on the full life cycle costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes

· environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, which enable those best placed to maximise benefits and/or minimise costs to develop their own solutions and responses to environmental problems.

63 It can be seen that section 3.5 incorporates the four recognised principles of ESD: the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms. The principle of intra-generational equity is not expressly mentioned. However, it may be included by implication on the basis that it is necessarily incorporated within the notion of inter-generational equity. The implication is supported by one of the recitals to the first part of the Intergovernmental Agreement where it is recognised that the concept of ESD provides potential for integration of environmental and economic considerations in decision making and for “balancing the interests of current and future generations”. Those inclusions and the omission later carried through to New South Wales legislation. The precautionary principle is expressed in the Intergovernmental Agreement in similar terms to Principle 15 of the Rio Declaration.

64 Implementation and application of the principles are addressed in nine schedules to the Intergovernmental Agreement dealing with specific areas of environmental policy and management. They are: (1) data collection and handling; (2) resource assessment, land use decisions and approval processes; (3) environmental impact assessment; (4) national environment protection measures; (5) climate change; (6) biological diversity; (7) national estate; (8) world heritage; and (9) nature conservation.

65 Schedule 3.3(iii) of the Intergovernmental Agreement provided that all levels of government would ensure that their environmental impact assessment processes were based on, inter alia, assessing authorities providing all participants in the process with guidance on the criteria for environmental acceptability of potential impacts, including the concept of ESD. Schedule 2 includes the following provisions:

66 In December 1992, as foreshadowed in the Intergovernmental Agreement of May 1992 and following the Rio Conference a month later, the Australian National Strategy for Ecologically Sustainable Development was endorsed by the Council of Australian Governments. It sets out the broad strategic and policy framework under which governments would cooperatively make decisions and take actions to pursue ESD. It states that it was to be used by governments to guide policy and decision-making, particularly in key industry sectors which rely on the utilisation of natural resources. The National Strategy’s goal, core objectives and guiding principles are defined as follows:

Australia's goal, core objectives and guiding principles for the Strategy

The Goal is:
Development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends.

The Core Objectives are:
- to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations
- to provide for equity within and between generations
- to protect biological diversity and maintain essential ecological processes and life-support systems

The Guiding Principles are:
- decision making processes should effectively integrate both long and short-term economic, environmental, social and equity considerations
- where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation
- the global dimension of environmental impacts of actions and policies should be recognised and considered
- the need to develop a strong, growing and diversified economy which can enhance the capacity for environmental protection should be recognised
- the need to maintain and enhance international competitiveness in an environmentally sound manner should be recognised
- cost effective and flexible policy instruments should be adopted, such as improved valuation, pricing and incentive mechanisms
- decisions and actions should provide for broad community involvement on issues which affect them
These guiding principles and core objectives need to be considered as a package. No objective or principle should predominate over the others. A balanced approach is required that takes into account all these objectives and principles to pursue the goal of ESD.

Who will be affected by ESD?

67 Both the Intergovernmental Agreement and the National Strategy acknowledge that while the Australian Local Government Association endorsed the ESD policy and promised that it would do all within its power to ensure compliance, it could not bind local government authorities to observe its terms. Nevertheless, it has been held by this Court that a proper exercise of the powers of local government authorities would mean that they (and the Court on a merits appeal) would apply the ESD policy unless there were cogent reasons to depart from it: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at [93] per McClellan CJ.

179 In Mison, the Court of Appeal held invalid a consent to a development application because it included the following condition: “Overall height of the dwelling-house being reduced to the satisfaction of Council’s chief town planner”. Thus, the approved height remained to be determined and might fall at any point within an undefined range. The relevant power was found in s 91(1) of the EPA Act - the predecessor to the current s 80(1) - which provided that “A development application shall be determined by (a) the granting of consent to that application, either unconditionally or subject to conditions”. The decision in Mison was summarised and explained by Spigelman CJ in Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 (NSWCA) at 514 – 515:

Mison

consent

consent to the application

Transport Action Group against Motorways Inc v Roads and Traffic Authority (NSW) (1999) 46 NSWLR 598

Scott v Wollongong City Council

Transport Action Group v Road and Traffic Authority (NSW)

Mison

recognised that questions of degree are involved

consent

consent to that application

180 More recently, Mison was explained in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 (NSWCA) at 285 - 286 by Basten JA (Handley JA and Hunt AJA agreeing) as follows:

[24] In accordance with principles explained by this Court in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, 73 LGRA 349, there may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of significantly altering the development in respect of which the application is made : at 737B; 351 (Priestley JA). The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application.

His Honour elaborated at 292:

Mison

Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW)

practical flexibility

Scott v Wollongong City Council

Genkem Pty Ltd v Environment Protection Authority

181 After Mison, in 1997 Part 4 of the EPA Act was amended to include a new s 80A which modifies the finality principle. It provides in part:

80A(1) Conditions—generally

(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

(b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or

(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(d) it limits the period during which development may be carried out in accordance with the consent so granted, or

(e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or

(g) it modifies details of the development the subject of the development application, or

(h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)–(9) of this section or section 94, 94A, 94EF or 94F.

(2) Ancillary aspects of development
A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.
…
(4) Conditions expressed in terms of outcomes or objectives
A consent may be granted subject to a condition expressed in a manner that identifies both of the following:

(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b) clear criteria against which achievement of the outcome or objective must be assessed.

182 A condition of a development consent will only be invalid if it falls outside the class of conditions permitted by Part 4, which now falls to be determined primarily by reference to the terms of s 80A. The intention of s 80A(4) is to allow an initial level of uncertainty and lack of finality. It allows a condition to require a variation of a proposal where the intended result is sufficiently identified, but the means of achieving it are left to the proponent: Kindimindi at [57], [59]. It has been said that s 80A(1)(a) and (g) (read with ss 79C, 80(4)), “mean that, in the particular circumstances dealt with by those provisions, conditions may be imposed that have the effect that the development approved is substantially different from that applied for. In my opinion, the statement in Mison is still correct…but in order for that principle to apply in those circumstances, the alteration must go beyond alterations of the kind contemplated by those sections”: Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376 (NSWCA) at [89] per Hodgson JA.

183 Kindimindi was analysed by Jagot J in Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411 at [21] as follows:

Kindimindi

184 The applicant submits that the finality argument is supported by the following extract from the Second Reading Speech for the Bill that introduced Part 3A of the Environmental Planning and Assessment Amendment (Infrastructure and other Planning Reform) Bill 2005 (Hansard 27 May 2005 p 16332): “Concept approvals will have statutory force and are designed to provide up-front certainty for those projects or programs which are either long term or complex, or where overarching strategies require statutory endorsement so their component parts can proceed with bankable security…Concept approvals will increase certainty up front and reduce environmental and investment risks and costs”. Consideration of such extrinsic material is permissible for limited purposes under s 34 of the Interpretation Act 1987 (NSW). I do not think that it is dispositive in the present case. No doubt concept approval increases certainty up-front to a degree (although the description “bankable security” may be a flourish) but that cannot mean that it should be equated with a project approval. Notwithstanding a concept plan approval, a subsequent project approval may be refused or granted conditionally: s 75J(4).

185 In my opinion, as a matter of construction, the finality principle does not apply to a concept plan approval under s 75O in Part 3A of the EPA Act for the following reasons.

186 First, a “concept” is a “general notion”: Australian Oxford English Dictionary (1999). Under Part 3A of the EPA Act a concept plan only has to “outline the scope of the project” and any “development options” and a “detailed description of the project is not required”: s 75M(2). The legislation does not contemplate that a concept plan has to have the finality of a development the subject of a subsequent project approval. Lack of finality is inherent in the notion of a concept plan.

187 Secondly, the finality principle, as developed, is concerned with conditions of development consents under Part 4. It was developed as a matter of statutory construction of a provision antecedent to s 80 in Part 4, and has been substantially modified by the later enactment of s 80A. In Part 3A there is no provision for conditions of a concept plan approval. Rather, there is a power under Part 3A for “modifications of the project” : s 75O(4). No such power appears in Part 4. The nearest provision in Part 4 is s 80A(1)(g) (introduced after Mison), which permits a condition which modifies “details” of a development the subject of a development application, as distinct from a condition which modifies the development as a whole.

188 Thirdly, if there is scope for the application of the finality principle in Part 3A, it more naturally belongs to the next phase of project approval, which unlike a concept plan approval, may be granted on conditions. In that regard s 75J(4) acknowledges the distinction between modifications of the project and conditions of approval: “A project may be approved under this part with such modifications of the project or on such conditions as the Minister may determine”.

189 Fourthly, in my opinion, the modifications in issue were permitted under the provisions of Part 3A, particularly under s 75O(4) or 75P(1)(a), for the following reasons.

Woodlands Creek

190 Woodlands Creek is one of the creeks that drain the catchments to the west of the railway line and that drain through the proposed project site to the sea. The western portion of Woodlands Creek on the proposed project site is currently piped underground. The proponents agreed that it was desirable to restore surface flows in this location and proposed a creek corridor designed to convey 100 year recurrence floodwaters without causing flooding of adjoining land. An issue arose as to the extent of the corridor. The Department of Planning obtained advice from an independent expert whose primary concern was whether the proposed corridors for Woodlands Creek and other creeks were of sufficient width to safely convey floodwaters in 100 year recurrence flood events without leading to inundation of adjoining lands and other adverse impacts. The following advice by the independent expert was reproduced in the Director-General’s Environmental Assessment Report:

As I have indicated, it is possible to engineer a solution that will ensure stream stability. However, it would appear to me that for this to be achieved, there is a need to increase the sinuosity of the stream in order to reduce the energy gradient of flood waters and thereby reduce flow velocities and shear stresses to acceptable levels. This is likely to require widening of the stream corridor. There is also a need to ensure that the impacts of the works on flows downstream of the site can either be minimised or mitigated.

natural

minimum

191 Accordingly, the Director-General’s Environmental Assessment Report recommended modifications to the project, in Modifications A1 and A2.

192 Modification A1(3) provided in relation to the area shaded pink on a map (bordering the western portion of Woodlands Creek) that “Development described in (1) may occur on the area hatched pink where the Proponent has addressed the matters in Modification A2, Schedule 2 to the satisfaction of the consent authority”. Thus, Modification A1(3) increased the width of the riparian corridor proposed by the proponents by the area hatched pink in the plan which appears in Modification A1, while stipulating that if the proponent satisfied the performance criteria in Modification A2 to the satisfaction of the consent authority, that pink area could be developed. Modification A2 (2) sets performance criteria for Woodlands Creek, as follows:

193 The applicant submits that (a) Modifications A1 and A2 unlawfully allows the question of the final environmental impact of the design of Woodlands Creek to be unknown and deferred for later consideration because the creek’s design itself was unknown; (b) the Minister failed to finally determine the question of the extent of buffers which should be allowed around the creeks and instead set up a process whereby the applicant could apply for an extension of the developable area by submitting documentation to the Minister at a later date; and (c) there should have been an approved engineering plan or the like which achieved certainty.

194 In my opinion these modifications were permitted under s 75O(4). Moreover, in my opinion (as the respondents submit) even if the finality principle applies to concept plan approvals, there was sufficient finality: performance criteria, design criteria, location and width were all known and all that was missing was a detailed engineering plan which conformed with the modification.

Women’s Area

195 The applicant pleads that the Minister deferred for later consideration the question of possible impacts of the proposal on an Aboriginal cultural site identified in the report of Stuart Huys dated June 2006. That site is the “Women’s Area” referred to in the evidence. The deferral for later consideration is a reference to Modification B1 of the Minister’s approval.

196 The report of Stuart Huys was an Aboriginal Cultural Heritage Assessment Report to the Department. Mr Huys noted that Aboriginal representatives involved in the project had identified a number of specific areas that they believe are of high cultural significance, including the “’Women’s Area’ which incorporates the Turpentine Forest, and extends down to the McCauley’s beach dune system”. The Turpentine Forest is adjacent to, but is not part of, the proposed development area. However, Mr Huys also said that certain Aboriginals believed the Women’s Area was not defined by the present day extent of the Turpentine Forest. He said that the views and information by the Aboriginal representatives cannot feasibly be assessed or tested against the available archaeological evidence and that it was very unlikely that any further archaeological investigation could contribute any new and meaningful information to that assessment. He added that it was certainly possible that an anthropological study may help to further clarify the nature and extent of the Women’s Area and that consideration should be given to commissioning an independent anthropological study.

197 The Director-General was authorised by s 75F(6) (applied by s 75N) of the EPA Act to require the proponents to include in an environmental assessment a statement of the commitments the proponents were prepared to make for environmental management and mitigation measures on the site. The Director-General’s environmental assessment requirements of 24 April 2006 required the proponents to include in their environmental assessment “ a draft Statement of Commitments, outlining environmental management, mitigation and monitoring measures”.

198 The proponents provided such a draft statement of commitments including, relevantly, commitment (12) in relation to cultural heritage, as follows:

Women’s Area

199 The report by Mary Dallas referred to in that commitment addressed the Women’s Area (in section 2.4). She referred to conflicting evidence as to its location and concluded that there was a need for further consultation to determine its exact location.

200 The Director-General’s Environmental Assessment Report in Section 6.2.4 dealt with Aboriginal cultural heritage including a possible Women’s Area cultural site identified in the Huys Report. It concluded:

Women’s Area

201 This was a reference to Modification B1 which strengthened the proponents’ draft commitments by introducing a requirement for an anthropological report, as follows:

B1 Aboriginal cultural heritage

(2) The Proponent shall:

Women’s Area

(b) submit the report by the appropriately qualified and practising anthropologist as part of any future application proposing to develop the ARV lands.

202 Thus, the provisions of Part 3A contemplated that a proponent of a concept plan may be required to make such a commitment. Further, in my opinion, the modification was permitted by ss 75O(4) or 75P(1)(A).

203 For these reasons, I reject the third ground of challenge.

Orders

204 The applicant has succeeded on the ESD ground of challenge insofar as it concerns the climate change flood risk consideration. All other grounds of challenge have been rejected. No discretionary considerations against the granting of relief were raised by the respondents, nor can I see any.

205 I propose the following relief:

(1) Declaration that the first respondent’s approval on 21 December 2006, under s 75O(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), of the Concept Plan in application number MP 06_ 0094 for a project for redevelopment of land at Sandon Point, is void and of no effect.
(2) Declaration that the first respondent’s determinations on 21 December 2006 that approval to carry out the remainder of the project or stages of the project with a capital investment value

(i) of $5 million or more is, pursuant to s 75P(1)(a) of the EPA Act , to be subject to Part 3A of the EPA Act ,
(ii) of less than $5 million is, pursuant to s 75P(1)(b) of the EPA Act , to be subject to Part 4 or Part 5 of the EPA Act ,

are void and of no effect.

206 The parties are to bring in short minutes of proposed final orders if they differ from those proposed above, to give effect to this judgment. I will hear the parties as to costs, if not agreed. The exhibits may be returned.

Appendix to judgment

NEW SOUTH WALES AND COMMONWEALTH LEGISLATION THAT REFERS TO ECOLOGICALLY SUSTAINABLE DEVELOPMENT
(see judgment at [69])

03/12/2007 - Typographical correction. - Paragraph(s) 166

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Walker v Minister for Planning [2007] NSWLEC 741

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CITATION:	Walker v Minister for Planning [2007] NSWLEC 741 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Jill Walker FIRST RESPONDENT: Minister for Planning SECOND RESPONDENT: Stockland Development Pty Ltd ABN 71 000 064 835 THIRD RESPONDENT: Anglican Retirement Villages- Diocese of Sydney ABN 39 922 848 563
FILE NUMBER(S):	40240 of 2007
CORAM:	Biscoe J
KEY ISSUES:	Judicial Review :- whether Minister's approval of concept plan for project and associated determinations under ss 75O(2) and 75P(1) in Part 3A of Environmental Planning and Assessment Act 1979 void - whether Minister obliged, and failed, to consider findings and recommendations in report of Commission of Inquiry as required by s 75O(2)(c) - whether Minister obliged, and failed, to consider principles of ecologically sustainable development and the impact of the proposal upon the environment including as to whether impacts of proposed flood constrained coastal plain project would be compounded by climate change flood risk - whether Minister deferred essential matters for later consideration or the concept plan approval lacked finality and whether those principles applicable to concept plan approval under Part 3A Ecologically Sustainable Development (ESD): - whether Minister's concept plan approval and associated determinations under ss 75O(2) and 75P(1) in Part 3A of Environmental Planning and Assessment Act 1979 void because Minister failed to take into account ESD and impact of proposal on environment - whether ESD mandatory consideration - whether Minister failed to consider ESD principles by not considering whether impacts of proposed flood constrained coastal plain project would be compounded by climate change – whether Minister failed to consider ESD principles re impact of proposal on Endangered Ecological Communities because there was no up to date mapping to verify their extent and nature
LEGISLATION CITED:	Coastal Protection Act 1979 ss 3(b), 37A, 54A Constitution Act 1902 (NSW), s 35CA Energy Services Corporation Act 1995, ss 5, 8 Environmental Planning and Assessment Act 1979, Pt 3A and ss 4, 5, 76A, 79C, 119 Environmental Planning and Assessment Regulation 2000, cl 8B, Schedule 2 cl 6(1) Fire Brigades Act 1989, s 10A Fisheries Management Act 1994, ss 3, 7E, 57, 143 Interpretation Act 1987, s 34 Land and Environment Court Act 1979, s 39(4) and (2) National Parks and Wildlife Act 1974, s 2A(2) Protection of the Environment Administration Act 1991, s 6(2) Rural Fires Act 1997, ss 3 and 9 State Environmental Planning Policy (Major Projects) 2005 Sydney Harbour Foreshore Authority Act 1998, s 15 Water Management Act 2000, s 3
CASES CITED:	Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100; Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Azriel v NSW Land and Housing Corporation [2006] NSWCA 372; Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651; BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210; Calvert Cliffs’ Coordinating Commission v US Atomic Energy Commission 449 F. 2d 1109; Carstens v Pittwater Council (1999) 111 LGERA 1; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459; City of Unley v Claude Neon Ltd (1983) 49 LGRA 65; Country Energy v Williams (2005) 63 NSWLR 699, 141 LGERA 426; Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd (1934) 52 CLR 85; Dimmock v Secretary of State for Education and Skills [2007] EWHC 2288; Drake-Brockman v Minister for Planning [2007] NSWLEC 490; F & D Bonaccorso Pty Ltd v City of Canada Bay Council [No 2] [2007] NSWLEC 537; Farah v Warringah Council [2006] NSWLEC 191; Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149; Foster v Minister for Customs and Justice (2000) 200 CLR 442; Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 93 LGERA 249; Gales Holdings Pty Ltd v Tweed Shire Council (2006) 146 LGERA 236; Gray v The Minister for Planning (2006) 152 LGERA 258; Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1994) 86 LGERA 143; Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; Leatch v National Parks and Wildlife Services (1993) 81 LGERA 270; Massachusetts v Environmental Protection Agency (2007) 127 S.Ct. 1438; McDougall v Warringah Shire Council (1993) 30 NSWLR 258; Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122; Murrumbidgee Groundwater Preservation Association Inc v Minister of Natural Resources (2005) 138 LGERA 11; Nicholls v Director-General of National Parks and Wildlife (1994) 84 LGERA 397; Parramatta City Council v Hale (1982) 47 LGRA 319 ; Parramatta City Council v Pestell (1972) 128 CLR 305; People of the State of California v General Motors Corporation and Ors (2007) WL 2726871; Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ; Providence Projects Pty Ltd v Gosford City Council (2006) 147 LGERA 274; Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd [2007] QCA 338; Re Xstrata Coal Queensland Pty Ltd and Ors [2007] QLRT 33; Save our Street Inc v Settree (2006) 149 LGERA 30; Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59; Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10; Thornton v Adelaide Hills Council (2006) 151 LGERA 1; Town Planning Board v Society for the Protection of the Harbour Ltd [2004] 1 HKLRD 396; Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR; Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396. ; Tuna Boat Owners Association of SA Inc v Development Assessment Commission (2000) 110 LGERA 1; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376; Weal v Bathurst City Council (2001) 111 LGERA 181; Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage (2006) 232 ALR 510; Winn v Director-General National Parks and Wildlife (2001) 130 LGERA 508; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; Zhang v Canterbury City Council (2001) 51 NSWLR 589
DATES OF HEARING:	18 and 19 September 2007
DATE OF JUDGMENT:	27 November 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr M H Baird and Mr G Young, barristers SOLICITORS: Environmental Defender's Office FIRST RESPONDENT: Ms S Duggan and Mr M Seymour, barristers SOLICITORS: Department of Planning SECOND RESPONDENT: Mr P R Clay, barrister SOLICITORS: Herbert Geer & Rundle THIRD RESPONDENT: Mr T G Howard, barrister SOLICITORS: Minter Ellison