4nature Incorporated v Centennial Springvale Pty Ltd

HCA 21; (1999) 197 CLR 611 Mosman Municipal Council v IPM Pty Ltd [2016] NSWLEC 26 Oates v Attorney-General (Cth) [2001] FCA 84; (2001) 181 ALR 559 Parramatta City Council v Hale (1982) 47 LGRA 319 Plaintiff M47/2012 Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 581 Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 Tovir Investments Pty Ltd v Waverly Council [2014] NSWCA 379 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Zentai v O'Connor (No 3) [2010] FCA 691; (2010) 270 ALR 293 Texts Cited: Category: Principal judgment Parties: 4nature Incorporated (Applicant) Centennial Springvale Pty Limited (First Respondent) Springvale SK Kores Pty Limited (Second Respondent) Minister for Planning (Third Respondent) Representation: Counsel: Mr R Lancaster SC with Mr N Kelly (Applicant) Mr N Williams SC with Ms J Davidson (First and Second Respondent) Mr J Hutton (Third Respondent)

Solicitors: Environment Defenders Office (Applicant) Ashurst (First and Second Respondent) Department of Planning (Third Respondent) File Number(s): 2016/163569 Publication restriction:

INDEX 4nature Incorporated Seeks to Set Aside an Approval for the Expansion of a Mine [1] Issues for Determination [9] Factual Background Leading up to the Granting of Consent [12] The Mine Extension Project [13] The Assessment and Approval of the Project [32] Statutory and Planning Framework [127] Did the PAC Publish a Statement of Reasons? [135] Applicable Legal Principles [153] Did the PAC Attain the Necessary State of Satisfaction That the Carrying Out of the Project Would Have a Neutral or Beneficial Effect on Water Quality? [162] Did the PAC Fail to Consider a Mandatory Relevant Consideration - Satisfaction of NorBE? [213] Costs [219] Orders [222]

4nature Incorporated Seeks to Set Aside an Approval for the Expansion of a Mine

1. The applicant, 4nature Incorporated ("4nature"), challenges the decision of a Planning Assessment Commission ("PAC"), as delegate of the third respondent, the Minister for Planning ("the Minister"), to grant development consent to the first respondent, Centennial Springvale Pty Limited ("Centennial"), for the Springvale Mine Extension Project ("the project"), on 21 September 2015 ("the consent").
2. It was not in dispute that 4nature is a: 1. not-for-profit organisation whose primary object is environmental protection; 2. charity registered with the Australian Charities and Not-for-profits Commission; and 3. corporate body incorporated under the Associations Incorporation Act 2009.
3. Springvale Mine ("the mine") is an underground coal mine located approximately 15kms northwest of Lithgow and 120kms west of Sydney. Centennial and the second respondent, Springvale SK Kores Pty Limited ("Springvale"), own the mine in equal shares.
4. Centennial and Springvale: 1. were jointly named as the applicant in the consent for the project; and 2. own the mine, and the Angus Place underground coal mine ("the Angus Place mine"), in equal shares and as participants in an unincorporated joint venture.
5. The consent was granted pursuant to s 89E of the Environmental Planning and Assessment Act 1979 ("the EPAA").
6. It was not contentious that the land to which the development consent applies includes land within the Sydney Drinking Water Catchment, as defined in cl 7 of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 ("the Catchment SEPP").
7. The gravamen of 4nature's complaint is that the PAC did not reach, as required by cl 10(1) of the Catchment SEPP, an independent state of satisfaction as to whether the carrying out of the project will have a neutral or beneficial effect ("NorBE") on water quality before it granted the consent. Because such satisfaction was a pre-condition to the exercise of its power to approve the project, the consent is invalid.
8. In my opinion, having regard to the totality of the material before the PAC, 4nature's challenge cannot be sustained and must fail.

Issues for Determination

1. The grounds of challenge to the PAC's decision to grant the consent, as pleaded, were three-fold: 1. first, whether the PAC attained the requisite state of satisfaction that the carrying out of the project would have a neutral or beneficial effect on water quality as required by cl 10(1) of the Catchment SEPP; 2. second, whether the PAC misdirected itself as to the law to be applied in the consideration and determination of the consent; 3. third, whether the PAC failed to take into account a mandatory relevant consideration, namely, whether pursuant to cl 10(1) of the Catchment SEPP the project would have a neutral or beneficial effect on water quality.
2. At the hearing, 4nature agreed that if it failed in respect of the first ground of review, it could not succeed on the second, the latter being a variant of the former. It is therefore convenient for them to be dealt with together.
3. It should also be noted that 4nature neither pleaded nor argued that the state of satisfaction required to be reached by the PAC was a jurisdictional fact that the Court could determine for itself, or that the decision of the PAC was legally unreasonable (Minister for Immigration and Citizenship v Li [2013] HCA 8; (2013) 249 CLR 332).

Factual Background Leading up to the Granting of Consent

1. The parties agreed on a number of background facts informing the challenge, some of which were contained in a comprehensive statement of agreed facts, others of which were found in a four volume agreed tender bundle. Accordingly, the following facts and chronology are not, in the main, contentious. The inferences to be drawn from these events are, however, contestable.

The Mine Extension Project

1. Development consent (DA 11/92) was granted for the mine in July 1992. Underground coal mining operations commenced in 1995 and continued under DA 11/92 until 30 September 2015, subject to a number of subsequent modifications. On 5 December 2013, a modification to the 1992 consent was approved, allowing mining operations to continue under that development consent until 30 September 2015.
2. The project was granted the consent the subject of these proceedings on 21 September 2015. The project involves an enlargement of the existing underground mine by extending mining operations to the south, east and southeast, and by prolonging the mine life by 13 years. Extraction of up to 4.5 million tonnes of run-of-mine coal per year is permitted until 31 December 2028. The project is classified as State significant development, and accordingly, Pt 4, Div 4.1 of the EPAA governed its assessment and approval.
3. The project will be carried out partly within the "Sydney Drinking Water Catchment", as defined in the Catchment SEPP.
4. Water is discharged from the mine according to an Environment Protection Licence 3607 ("EPL 3607") via Licensed Discharge Points ("LDPs"). The following LDPs, namely, LDP001, LDP002, LDP009, and LDP010, are within the area of land covered by the consent and within the Sydney Drinking Water Catchment.
5. The locations of LDP001, LDP002, LDP009 and LDP010 are depicted on the figure attached at appendix 'A'.
6. The Upper Coxs River is a tributary of the Upper Nepean and Upstream Warragamba extraction management unit and is also a sub-catchment within the Sydney Drinking Water Catchment.
7. Sawyers Swamp Creek is a third order Strahler watercourse located in the Sydney Drinking Water Catchment and partly located in the area of land covered by the consent.
8. Downstream of the area of land covered by the consent, the Coxs River (fifth and sixth order Strahler), Lake Wallace, Lake Lyell and Lake Burragorang are all within the Sydney Drinking Water Catchment.
9. Lake Burragorang is impounded by the Warragamba Dam. The latter is the major water storage for greater metropolitan Sydney.
10. The Springvale Delta Water Transfer Scheme ("SDWTS") is defined in the consent as meaning: Existing pipeline that transfers groundwater inflows from the underground workings and dewatering bores to licensed discharge point LDP009.

The Assessment and Approval of the Project

1. In September 2012 Springvale Coal Pty Ltd (as Manager of the Springvale unincorporated joint venture, for and on behalf of the Springvale joint venture participants) ("Springvale Coal") requested the Director-General's Environmental Assessment Requirements ("DGRs") for the project in accordance with Pt 4 of the EPAA.
2. The DGRs were issued on 6 November 2012. They included a requirement for an Environmental Impact Statement ("EIS") addressing, amongst other things, a detailed assessment of the potential impacts on the quality and quantity of surface water and ground water resources. Attachment 1 to the DGRs listed policies, guidelines and plans which might be relevant to the project. It included a reference to the Catchment SEPP.
3. In respect of "Water Resources", the DGRs identified as a key issue for the purposes of the project's environmental assessment: • whether the development can operate to achieve a neutral or beneficial effect on water quality in the drinking water catchment, consistent with the provisions of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011.
4. The Springvale Mine Extension Project Groundwater Impact Assessment was prepared and published on 9 February 2014 by RPS Pty Ltd ("RPS") for Springvale Coal. In relation to the proposed development, it was predicted that there would be no change in water quality: 7.3.9 Potential Water Quality Impacts No change in water quality is expected as a result of the proposed development. Groundwater inflows to the underground operations are expected to remain consistent with current inflow water quality at around 700 to 1000 µS/cm as discussed in Section 4.9. No deterioration of quality of groundwater inflows have been observed due to current mining operations, and consequently none are predicted due to the proposed development. Similarly no detrimental impacts to groundwater quality are expected within the shallow groundwater aquifer or within the swamps. Consistent with historical mining at Springvale, no deterioration in groundwater quality has occurred.
5. In April 2014 Springvale Coal submitted a development application dated 18 November 2013 to the Department for State significant development consent for the project ("the DA").
6. An EIS for the project was submitted in conjunction with the DA on 7 April 2014. The EIS was publicly exhibited from 12 April 2014 until 26 May 2014. The EIS included an assessment of the impacts of the project and an assessment of the cumulative impacts of the project and an extension to the nearby Angus Place mine (not yet approved). The EIS referred to the Catchment SEPP and its application to the project, including the aims of the Catchment SEPP, cl 9(1), and the NorBE test contained in cl 10(1). It stated that Appendices E and F of the EIS (the groundwater and surface water impact assessments, respectively) addressed the NorBE test: 5.4.7 SEPP (Sydney Drinking Water Catchment) 2011 SEPP (Sydney Drinking Water Catchment) 2011 applies to land within the Sydney drinking water catchment. The Project Application Area is partly located within the Sydney drinking water catchment. The aims of SEPP (Sydney Drinking Water Catchment) 2011 are: (a) to provide for healthy water catchments that will deliver high quality water while permitting development that is compatible with that goal (b) to provide that a consent authority must not grant consent to a proposed development unless it is satisfied that the proposed development will have a neutral or beneficial effect on water quality, and (c) to support the maintenance or achievement of the water quality objectives for the Sydney drinking water catchment. Clause 9(1) of this SEPP provides that any development or activity proposed to be carried out on land within the Sydney drinking water catchment should incorporate the Sydney Catchment Authority's current recommended practices and standards. Section 10.2 addresses this. Alternatively, clause 9(2) of this SEPP provides that if such practices and standards are not incorporated, it needs to be demonstrated to the satisfaction of the consent authority how the practices and performance standards proposed to be adopted will achieve outcomes not less than those achieved by the Authority's current recommended practices and standards. Section 10.2 addresses this. Clause 10(1) of this SEPP provides that a consent authority must not grant consent to the carrying out of development on land within the Sydney drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality. For the purposes of determining whether the carrying out of the proposed development on land in the Sydney drinking water catchment would have a neutral or beneficial effect on water quality, the consent authority must, if the proposed development is one to which the NorBE Tool applies, undertake an assessment using that Tool. The "NorBE Tool" is set out in Appendix 1 of the document titled Neutral or Beneficial Effect on Water Quality Assessment Guideline 2011 prepared by the Sydney Catchment Authority. Appendix E and Appendix F address the "NorBE" test.

1. The "Impact Assessment" in section 4.1 of the Regional Assessment provided a summary of the model results from the top of the catchment downstream to Lake Burragorang.
2. A table in section 4.1 contained a summary of the predicted daily flows into the Coxs River catchment: Table 4.1: Summary of Predicted Daily Flows (ML/d) in the Coxs River Catchment Location Node NUL WS1 WS2a WS2b Kangaroo Creek and Coxs River above Wangcol Creek/Blue Lagoon Kangaroo Creek downstream of Angus Place LDP001 #011 0.5(0.0-458) 26.1(5.4-474) 2.9(2.0-460) 2.5(0-460) Coxs River above Wangcol Creek/Blue Lagoon #056 1.4(0.0-1613) 27.4(6.9-1629) 5.1(2.0-1616) 3.4(2.0-1616) Sawyers Swamp Creek Sawyers Swamp Creek downstream of Springvale LPD009 #014 0.2(0.0-170) 14.4(0.0-186) 28.0(3.0-199) 28.0(3.0-199) Sawyers Swamp Creek above Coxs River #166 0.2(00-223) (14.5(0.0-239) 28.2(3.0-252) 28.2(3.0-252)

1. Table 4.2 contained a summary of the predicted daily salinity in the Coxs River catchment: Table 4.2: Summary of Predicted Daily Salinity (mg/L) in the Coxs River catchment. Location Node NUL WS1 WS2a WS2b Kangaroo Creek and Coxs River above Wangcol Creek/Blue Lagoon Kangaroo Creek downstream of Angus Place LDP001 #011 50(50-68) 789(75-804) 698(55-804) 664(55-804) Coxs River above Wangcol Creek/Blue Lagoon #056 50(50-89) 761(63-804) 538(57-804) 498(57-804) Sawyers Swamp Creek Sawyers Swamp Creek downstream of Springvale LDP009 #014 50(50-50) 761(50-804) 799(160-804) 800(160-804) Sawyers Swamp Creek above Coxs River #166 51(50-379) 751(50-804) 799(154-804) 799(154-804) Lake Wallace Coxs River above Lake Wallace #047 599(107-771) 755(111-797) As per WS1 As per WS1 Lake Wallace #074 321(91-552) 604(79-747) As per WS1 As per WS1 Lake Lyell and above Lake Lyell Coxs River above Lake Lyell #035 231(50-540) 552(67-740) As per WS1 As per WS1 Lake Lyell #174 223(127-462) 422(145-566) As per WS1 As per WS1 Thompsons Creek Reservoir Thompsons Creek Reservoir #272 276(237-471) 477(314-613) As per WS1 As per WS1 Lake Burragorang and above Lake Burragorang Coxs River above Lake Burragorang #225 90(50-217) 153(52-503) As per WS1 As per WS1 Lake Burragorang #280 85(73-97) 97(74-112) As per WS1 As per WS1

1. It showed salinity increasing at the discharge point, at Lake Burragorang and at the Coxs River above the lake. Moreover, the Regional Assessment stated that: From the above, there is no target for salinity since the ADWG do not have a health-based water quality criteria. There is also no target for salinity for the Prospect Water Filtration Plant with respect to Raw Water Supply Agreement. As identified in the SSTV Assessment, other water quality characteristics meet the ADWG and the Raw Water Supply Agreement specifications. The predicted minor increase in salinity in Lake Burragorang due to the proposal is therefore considered to have a neutral effect with respect to the Neutral or Beneficial Effect test criteria.
2. On 12 September 2014 Dr Justin Bell, the Principal Environmental Engineer for RPS, wrote a letter to Springvale Coal, seeking assistance to address a query received from the EPA on the proposed total predicted discharge to the Coxs River associated with the project. The letter noted that: …the predicted total discharge to the Coxs River ranges from 21.14ML/d in 2014 to a peak of 31.84ML/d in 2024 with SDWTS at 30ML/d. When the SDWTS is upgraded to a capacity of 50ML/d, discharge to the Coxs River ranges from 21.14ML/d in 2014 to 45.03ML/d in 2024. It is noted that this latter scenario represents Angus Place discharge predominantly being transferred to SDWTS and Springvale discharging through its LDP009 since there is now no direct demand at Wallerawang Power Station. In the circumstance that SDWTS is not available to Angus Place Colliery, discharge to the Coxs River of only mine water make at Springvale LDP009 and Pit Top via LDP001 ranges between 12.72ML/d in 2014 and 18.66ML/d in 2022. Following cessation of mining at Springvale Mine, discharge to the Coxs River reduces to 20km); and • cumulative water discharges into the Coxs River catchment from other industrial and agricultural sources, over which Centennial has no control. Furthermore, the Department questions what would constitute a 'negligible change' in salinity levels at Lake Burragorang, and if a greater than a negligible change is identified, what could be done under the existing consent to manage the impact. The Department notes that the modelled variations in salinity under median rainfall conditions in Lake Burragorang are minimal, regardless of whether both Springvale and Angus Place are closed (98 mg/L) or whether the mines are operated sequentially (103 mg/L) or concurrently (104 mg/L). The Department notes all these levels are fundamentally very similar and are substantially less than the 600 mg/L recommended by the Australian Drinking Water Guidelines 2015 (ADWG). The PAR noted that this predicted increase of 5 - 6% is not arithmetically 'neutral'. However, the Department is of the view that that 'arithmetic neutrality' should not be the basis of its assessment. The critical question is whether the increase is 'environmentally neutral', to both ecosystems and the ultimate users of the water (i.e. the population of Sydney). In this regard, it is important to note that the predicted increase in salinity in Lake Burragorang results not from higher EC in inflows from the Coxs River, but from an increased total salt load as a result of the expanded mining area. The increase must be considered in the light of the ADWG and the potential for any such increase to lead to any 'environmental harm'. In the Department's opinion, there is no basis on which to conclude that there would be any negative effects from the predicted increase in salinity, which is well within the range of normal upland streams and catchments in eastern Australia and well within the expected standards of the ADWG. On this basis, the Department considers the changes to be environmentally 'neutral'. The Department is of the view that the appropriate places to measure and manage the impacts of mine-water discharges area at the mine's LDPs. The Department is satisfied that the water quality limits agreed between the EPA and Centennial and included in the draft conditions, as well as the implementation of the proposed Upper Coxs River Action & Monitoring Plan (see below) would result in a 'beneficial effect' on water quality in the Coxs River and its downstream waterways, when compared to the existing approved discharges.

1. In conclusion, the Final Assessment Report stated that the Department considered that its recommended conditions provided a "comprehensive, strict and precautionary approach to ensuring that the project can comply with relevant criteria and standards".
2. On 18 September 2015 the project was referred to the PAC for determination. The cover letter from the Department to the PAC noted that the Department had finalised its assessment and recommended that the project be approved, subject to conditions. The Final Assessment Report was attached. The cover letter noted that the Final Assessment Report focused on providing a response to the four recommendations made by the PAC in the first PAC Review Report, the second PAC Review Report and the Addendum Report.
3. On 21 September 2015 the PAC granted development consent to the project, subject to conditions. The consent was signed by the PAC as the Minister's delegate: … for the Minister for Planning, the Planning Assessment Commission of NSW approves the development application referred to in Schedule 1, subject to the conditions in Schedules 2 to 6. These conditions are required to: • prevent, minimise, and/or offset adverse environmental impacts; • prevent, minimise, and/or offset impacts on controlling provisions and matters protected under the EPBC Act; • set standards and performance measures for acceptable environmental performance; • require regular monitoring and reporting; and • provide for the ongoing environmental management of the development.
4. Condition 9 of the consent concerned water supply and provided that: The Applicant shall ensure that it has sufficient water for all stages of the development, and if necessary, adjust the scale of operations on site to match its available water supply.
5. By reference to "Table 6: Water Management Performance Measures", condition 12 of the consent prescribed water quality limits for mine water discharge which included the salinity limits agreed between the EPA and Centennial Coal on 22 June 2015 (under "mine water discharges").
6. Condition 13 of the consent required the preparation of an Upper Coxs River Action and Monitoring Plan in consultation with the relevant statutory authorities, including the EPA and WaterNSW, to be submitted to the Secretary of the Department for approval by 30 June 2016: The Applicant shall prepare an Upper Coxs River Action & Monitoring Plan for the development to the satisfaction of the Secretary. This plan must: a) be prepared in consultation with DPI-Water, WaterNSW, EPA and Energy Australia; b) be submitted to the Secretary for approval by 30 June 2016, unless otherwise agreed by the Secretary; c) identify all available water management measures designed to achieve the mine water discharge criteria and associated timeframes required by condition 12 above, including potential transfer of mine water to Mt Piper Power Station and consideration of all licensed discharge points within the Upper Coxs River catchment (including at Springvale Mine, Lidsdale Siding, Western Coal Services and Angus Place Colliery); d) include a financial justification and timetable for achieving reductions in salinity in the Upper Coxs River to 500 (90th percentile) µS/cm EC by June 2019 and identify enforceable mechanisms for the implementation of the proposed measures; …

Statutory and Planning Framework

1. Section 89E(1) of the EPAA, contained in Div 4.1 of that Act, empowers the Minister to determine a development application in respect of State significant development: 89E Consent for State significant development (1) The Minister is to determine a development application in respect of State significant development by: (1) (a) granting consent to the application with such modifications of the proposed development or on such conditions as the Minister may determine, or (b) refusing consent to the application.
2. Section 79C(1) applies to any assessment of a development application under Div 4.1 of the EPAA: 79C Evaluation (1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
3. The stated aims of the Catchment SEPP are located in cl 3(1) of that instrument: 3 Aims of Policy The aims of this Policy are: (a) to provide for healthy water catchments that will deliver high quality water while permitting development that is compatible with that goal, and (b) to provide that a consent authority must not grant consent to a proposed development unless it is satisfied that the proposed development will have a neutral or beneficial effect on water quality, and (c) to support the maintenance or achievement of the water quality objectives for the Sydney drinking water catchment.

Did the PAC Publish a Statement of Reasons?

1. As stated above, neither 4nature, Centennial, nor Springvale has made a formal (or for that matter, informal) request to the PAC for a statement of its reasons for the grant of consent.
2. 4nature asserted that such a request was unnecessary because the reasons for the PAC's decision were in fact contained in the cover letter from the PAC to the Department dated 21 September 2015. This document records the PAC's reasons for granting consent to the project, namely, because the PAC was "satisfied that the project's benefits outweigh its potential impacts, and has determined that the project should be approved, subject to the Department's recommended conditions". That this was the reason for the PAC's decision was supported, 4nature argued, by the Factsheet published almost contemporaneously by the PAC on 22 September 2015, which repeated verbatim the reason given for the approval and referred to the letter dated 21 September 2015 as a "Determination Report".
3. That the letter dated 21 September 2015 could be said to comprise a statement of reasons of the PAC's determination to grant consent was important to 4nature for at least two reasons. First, according to 4nature, it was demonstrative of the legal error made by the PAC insofar as it reveals that the PAC had approached its assessment by weighing up the benefits versus the impacts of the project and by making its determination on this basis, and not, as it was required to do, by reaching a state of satisfaction about whether the project would have a neutral or beneficial effect on water quality.
4. A statement of reasons by a decision-maker can constitute evidence of the material put before the decision-maker, the way the material has been dealt with and, most obviously, the reasons for the making of the decision. A failure to include an express reference to a particular matter may justify the inference that the matter was not taken into account. It may be inferred that no finding, evidence or reason that was of any significance to the decision has been omitted (Bat Advocacy NSW Inc v Minister for the Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99 at [46]). But while a failure to include a matter in a statement of reasons may justify such an inference, the omission is not necessarily conclusive (Bat Advocacy at [47]).

Applicable Legal Principles

1. At this juncture, it is convenient to restate some fundamental general principles in judicial review relevant to the present proceedings.
2. First, the party seeking to establish jurisdictional error, or some other basis of relief, bears the onus of proof. As Gummow J explained in SZGUR (at [67], footnotes omitted): 67 An applicant…for judicial review of the Tribunal's decision, as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal. Nothing in the Migration Act displaces the usual position that it is for the moving party to make out its case. In Industrial Equity Ltd v Deputy Commissioner of Taxation, Gaudron J made a similar point with respect to the AD(JR) Act. We are not concerned here with questions of a presumption of the regularity or validity of administrative action. Rather, the point to be made is that it fell to the first respondent to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error. There was certainly no burden upon the Minister to demonstrate the positive proposition that the Tribunal had indeed considered the request.
3. Second, and more specifically, where an applicant in judicial review proceedings asserts that a decision-maker did not form a required state of satisfaction, that applicant must establish the absence of the necessary mental state on the balance of probabilities (Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd [2010] NSWLEC 1;(2010) 172 LGERA 25 at [58]-[60] and [68]-[70] per Preston J, affirmed by the Court of Appeal in Caroona at [35]-[41] and [72]-[73] per Tobias, Giles and Hodgson JJA agreeing, Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP Minister for Resources and Energy Special Minister (No 2) [2014] NSWLEC 30 at [80]-[83] per Pain J, and Mosman Municipal Council v IPM Pty Ltd [2016] NSWLEC 26 at [89] per Pepper J).
4. Merely because, as in the present proceedings, a respondent to such a challenge pleads that the necessary mental state was attained, does not ease the evidential burden on the applicant. Thus in the present case, the respondents do not need, in order to succeed, to affirmatively demonstrate that the PAC held a particular state of mind. By way of corollary, and again notwithstanding a positive pleading to this effect by Centennial and Springvale, it is strictly unnecessary for the purpose of resolving grounds 1 and 2 of the proceedings for the Court to make a positive finding that the PAC did in fact form the requisite state of satisfaction (Caroona at [57]-[58] per Tobias JA). All that the Court must determine is whether the PAC failed to reach the mandated state.

Did the PAC Attain the Necessary State of Satisfaction That the Carrying Out of the Project Would Have a Neutral or Beneficial Effect on Water Quality?

1. In relation to the first two grounds of challenge, 4nature did not submit that there had been no regard to the state of satisfaction contained in cl 10(1) of the Catchment SEPP by the PAC granting approval. The argument was more nuanced.
2. Rather, 4nature contended that in the absence of any reference to having attained the requisite state of satisfaction in the PEAR, PAC Review Reports, the contemporaneous documents prepared with the consent, or the cover letter dated 21 September 2015, there was a strong basis for inferring that the state of satisfaction set out in cl 10(1) of the Catchment SEPP was not reached by the PAC. In particular, 4nature submitted that the material before the PAC was inconsistent with the PAC being satisfied that the carrying out of the project would have a neutral or beneficial effect on water quality principally because: 1. the methodological approach to the NorBE test advocated by the Department in the PEAR was not consistent with the text of cl 10(1); 2. the modelling before the PAC indicated identifiable adverse impacts on water quality from the point of discharge (at LPD009) all the way to Lake Burragorang; and 3. there was no modelling of the overall effect on water quality of the staged reduction in salinity concentration of discharges set out in the conditions to the consent, but which was nevertheless asserted by the Department to result in a beneficial effect to water quality in the medium to long term.
3. A threshold question arose as to what was the appropriate comparator for the purposes of cl 10(1) of the Catchment SEPP.
4. According to 4nature, the relevant comparison was between the water quality if the project were carried out and the water quality if it were not ("the NUL case"). Furthermore, in order to make a proper comparison, it was necessary to have recourse to appropriate modelling on the impact of the project on water quality.
5. Centennial and Springvale rejected the contention that cl 10(1) was uniquely directed to a 'with or without' test when assessing the carrying out of the development on water quality. It was their submission that the appropriate comparator (in other words, the "base case") to be applied for any given development application was a factual question for the decision-maker as at the date of the determination of the application. For the reasons elaborated upon below, this position should be accepted.

Did the PAC Fail to Consider a Mandatory Relevant Consideration - Satisfaction of NorBE?

1. There was agreement between the parties that if the PAC failed to consider a mandatory relevant matter, namely cl 10(1) of the Catchment SEPP in the exercise of its power to grant consent, this would result in jurisdictional error with the likely consequence that the consent would be declared invalid (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 30-31, Hale at 339-341 and Weal at [80]).
2. 4nature submitted that having regard to the material before the PAC, and the absence of any reference to the requisite state of satisfaction in cl 10(1) of the Catchment SEPP having been reached by it in those materials, the PAC failed to properly consider the NorBE test contained in that clause. The PAC had done no more than advert to the NorBE requirement, and because of its failure to apply the NUL case in its baseline assessment of the project, the Court ought to infer that the PAC had not actively engaged in the process of evaluation necessary to reach the requisite state of satisfaction.
3. Having regard to the material before the PAC extensively surveyed and discussed above, in my opinion, this submission is not sustainable. Not only did the PAC consider the NorBE test contained in cl 10(1), it actively engaged in the intellectual evaluative process demanded by that clause. There is no cogent basis for drawing the contrary inference sought by 4nature.
4. At the risk of repeating the reasons given above, that there is no direct evidence of the PAC having independently analysed the results of Centennial's modelling does not mean that the PAC did not take this information into account in the relevant sense. For the Court to find otherwise in the circumstances of this case would be to trespass into merits review (Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [79]).
5. And even if the cogency of the modelling as a component of the NorBE test in cl 10(1) of the Catchment SEPP (assuming for present purposes that the language of that clause made it so), was a mandatory consideration, it cannot be found with a sufficient degree of confidence that the PAC was unaware of, and therefore did not properly consider, either the so-called 'failure' of the Department to use the NUL case baseline comparator, or the absence of any modelling before the PAC comparing the predicted impacts of the staged reduction in salinity concentrations as prescribed in the conditions of the consent to the observed water quality or the NUL case (Anderson at [130]-[136]).

Costs

1. Having failed on all three grounds of its challenge to the PAC's decision, and these being Class 4 proceedings, normally 4nature would be liable to pay the respondents' costs of the proceedings.
2. However, given that 4nature is a not-for-profit registered charity whose primary object is environmental protection, it is not difficult to conceive, subject to the appropriate evidence being marshalled, of a different costs order being sought by it (see r 4.2 of the LEC Rules).
3. On this basis, and at the request of 4nature, costs are reserved.

Orders

1. Because 4nature has been unsuccessful in its challenge to the decision to approve the project, the amended summons must be dismissed. Costs are reserved. And the exhibits are to be returned.

Appendix "A" LENVPLX11_2016_09_13_12_19_29_957 (421 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2016