The competing contentions
34In support of the factual premise for his submission, Mr Oshlack, on behalf of Mr Kennedy, relies upon an email provided to a representative of ARV in November 2012 from the author of the report upon which ARV relies. In that email she states that she is an historian and cultural heritage specialist but not an anthropologist. She gives the names of two anthropologists who might be consulted if an anthropological report is required. The report relied upon by ARV is one prepared in 2006 and 2007 and commissioned by the New South Wales Department of Environment and Conservation.
35The second material fact upon which Mr Kennedy relies to sustain his application arises from a project application submitted to the Director-General of the Department of Planning for development of the ARV Land. That application had been withdrawn prior to lodgement of the 2011 development application. As part of the project application, it is said that ARV submitted the report relied on for the purpose of the present application as satisfying Condition B1(2) of the Concept Plan Approval. It is further claimed by Mr Oshlack that when the Director-General issued his requirements for environmental assessment of that application, he repeated the requirement expressed in Condition B1(2) of the Concept Plan Approval. Thus, so it is argued, an inference should be drawn that the Director-General did not accept ARV's contention as to the sufficiency of the report upon which it relied.
36As the project application has been withdrawn, I do not consider the Director-General's action in respect of that application is relevant to the determination of Mr Kennedy's present motion. No inference of the kind asserted on behalf of Mr Kennedy could, in my opinion, be drawn. Even if it was, the Director-General's inferred opinion of the report would not determine the decision that this Court would be required to make when considering the issue that has been raised.
37Mr Kennedy also relies upon the fact that ARV sought, and the Court granted, leave to adduce new anthropological evidence in support of the development application. This circumstance, so it is submitted, makes apparent that no report meeting the requirements of Condition B1(2) of the Concept Plan Approval was lodged with the development application, with the consequence that Mr Kennedy must succeed in his present application.
38Mr Oshlack tendered an affidavit sworn by the solicitor having the carriage of this matter on behalf of ARV and filed in support of the latter's application to vacate the hearing originally fixed for the hearing of these proceedings. It will be remembered that the Registrar acceded to that application. The affidavit makes clear that ARV maintains its position that the report upon which it relies was a report that conformed to requirement of Condition B1(2) but to avoid debate as to its provenance and particularly as to the qualification of the author, the necessity to adduce new anthropological evidence was considered expedient so as to permit the efficient and timely disposal of the appeal.
39Having regard to that evidence, I do not consider that there has been any concession on the part of ARV that the factual premise for Mr Kennedy's application is so clearly established that summary dismissal of the proceedings would be appropriate.
40However, even if the factual premise upon which Mr Kennedy relies is established, he must demonstrate that the failure to meet the requirements of the conditions of the Concept Plan Approval to which I have referred clearly results in the 2011 development application being invalid. According to the submission of Mr Oshlack, such a result is the proper consequence of the decision in Timbarra.
41Mr Kennedy's reliance upon the decision in Timbarra is misplaced. The proceedings there being considered sought judicial review of a development consent granted for the extension of a gold mine. The respondent council had determined that a species impact statement under the provisions of the Threatened Species Conservation Act 1995 was not required because it was of the opinion that there was no significant affect on threatened species occasioned by the proposed mine extension. The trial judge determined that, on the material before the council, it was reasonably open for it to conclude that no such statement was required, with the consequence that the Court did not determine that question for itself in judicial review proceedings. The correctness of that determination was the central issue in the subsequent appeal to the Court of Appeal.
42Spigelman CJ (Mason P and Meagher JA agreeing) determined that in the judicial review proceedings before the court, the determination as to whether the development in contemplation required a species impact statement because the development for which consent had been granted was likely to have a significant affect on threatened species, thereby requiring a species impact statement, was a jurisdictional fact. Relevantly, that finding had the consequence that in those proceedings it was for the court to determine, on the evidence before it, whether the development proposed was likely to have the significant impact which mandated the need for a species impact statement to be obtained and provided to accompany the development application prior to its determination.
43The decision did not determine that documents first lodged with a consent authority as a development application could never constitute a valid development application unless all documents mandated by the EPA Act for such an application were lodged as part of the material initially provided to the consent authority. What is required is that all those documents mandated by the EPA Act to constitute or to accompany a development application be lodged with the consent authority before the discretion afforded by the Act to determine the application is exercised. This would include a requirement that any mandatory step to be taken for public exhibition of the application and any accompanying material occur before a determination can validly be made.
44As the Chief Justice observed in Timbarra at [37], the issue of jurisdictional fact was to be determined soley upon the proper construction of the EPA Act identifying the manner in which a development application is to be made. Clearly, condition B1(2) of the Concept Plan Approval did not involve the construction or application of any statutory provision. The statutory requirements for the making of a development application are found in s 78A of the EPA Act and cll 49 and 50 of the Environmental Planning and Assessment Regulation 2000. None of those provisions were invoked by Mr Oshlack in his submissions.
45The only statutory provision identified by Mr Oshlack was s 122 of the EPA Act which defines that which constitutes a breach of the Act. He submitted that the 2011 development application by ARV was made in breach of the EPA Act because the application was made in contravention of Condition B1(2) of the Concept Plan Approval. I do not agree with that submission.
46A development consent under Pt 4 or approval under Pt 3A of the EPA Act are instruments to be construed in a practical way on the basis that they are working documents, not usually prepared by lawyers or with the precision expected of Parliamentary Council when drafting legislation or statutory instruments (Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36]; Coffs Harbour City Council v The Minister for Planning and Infrastructure [2013] NSWCA 44 at [68]). Applying that approach to the Concept Plan Approval, I do not accept that Condition B1(2) had the effect contended for on behalf of Mr Kennedy.
47Condition B1(2), read with paragraph (12) of the Statement of Commitments, has the purpose of requiring consultation with appropriate Aboriginal community members in relation to a "Women's Area" which may be on the ARV land and the provision of a report upon that process, by an anthropologist, before any application to undertake sub-surface archaeological investigation is approved under either Pt 3A or Pt 4 of the EPA Act. The undertaking of that process and the preparation of a report upon it is then seen as a tool enabling the relevant determining body to assess the impact, if any, from soil disturbance of any part of the ARV Land that may have significant Aboriginal cultural heritage.
48The requirement for a stage of the development to be "generally consistent" with the terms of the Concept Plan Approval was expressed in paragraph (c) of the Minister's determination of the Concept Plan. I have earlier quoted that paragraph (at [26]). In terms, it identifies the need for general consistency with the approval "under 75P(2)(a) of the Act." Section 75P(2) relevantly provides:
"(2) If the Minister determines that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, the following provisions apply:
(a) the determination of a development application for the project or that stage of the project under Part 4 is to be generally consistent with the terms of the approval of the concept plan; ... ". (Emphasis added.)
49The provisions of the subsection reinforce my view that it is the decision upon any development application that is required to be consistent with the conditions of the Concept Plan Approval. As that is the statutory provision identified, in terms, as informing paragraph (c) of the Minister's determination, I would read Condition B1(2) as requiring that the requisite report be available for consideration by the consent authority prior to determining any application "proposing to develop the ARV lands."
50So understood, even if it be assumed that the report relied upon by ARV did not fulfil the requirement of Condition B1(2) at the time of lodging its development application with the Council, the development application was not "invalid", as Mr Oshlack contends it to be. Assuming that Condition B1(2) mandates the provision of the report before any valid development consent can be granted, as I believe it does, such a report may be provided at any time before the discretion available to the Court under s 80 of the EPA Act to determine the application is exercised.
51Without conceding that the report already obtained does not meet the requirement, ARV has indicated that the further expert report that it has commissioned is a report intended to meet the requirements of Condition B1(2). As I have said, the Registrar has made directions for the provision of that report and for experts to meet with a view to preparing a joint report prior to the hearing fixed for 28 May next.
52My decision addressing the various contentions of Mr Kennedy on his notice of motion makes it readily apparent that, on the material tendered and relevant to that motion, the appeal brought by ARV is a competent appeal. Moreover, Mr Kennedy has not discharged the "heavy" onus of establishing that the present appeal involves an abuse of process (Nikolaidis at [13]). ARV has exercised its statutory right allowing the Court to review, on its merits, the development application that the Council had refused. Whether the Court is satisfied that the requisite level of assessment upon any aspect of Aboriginal heritage, consistent with that identified in the Concept Plan Approval, has been met is a matter to be determined upon the available evidence at the final hearing of the proceedings. Importantly, the appeal process is not being used by ARV to gain some advantage for which an appeal of the present kind was not intended.
53Mr Kennedy has submitted that he is "prejudiced" by the manner in which ARV now seeks to obtain the evidence which the Registrar has allowed ARV to obtain and for which directions as to service and preparation of joint reports was made before the present hearing date was fixed. Prejudice of that kind is not to be equated with the "oppression" which may found a summary dismissal application. Any perceived inadequacy in the time available to address new evidence adduced by ARV was, as Mr Oshlack acknowledges, the subject of submissions by him to the Registrar when she vacated the hearing dates originally fixed, made the directions for the preparation and exchange of evidence and fixed the new date for hearing. No application to review the Registrar's decision has been made. In the absence of such an application, I must assume that her decision involved an appropriate exercise of discretion on the evidence available to her.
54Finally, it cannot be said that the exercise by ARV of its statutory right to appeal brings the administration of justice into disrepute. I have already considered what I consider to be the correct operation of Condition B1(2). The extent to which, if at all, that Condition impinges upon the grant of consent to the present development application is to be determined upon the final hearing of the proceedings. The debate between the parties as to the sufficiency of the existing evidence to address the question of Aboriginal heritage, coupled with that which is to be obtained, involves a factual determination which one would expect to be adjudicated in the final disposition of proceedings involving an appeal brought under s 97(1) of the EPA Act.