Applicant v BOTANY BAY CITY COUNCIL

The application to re-open is opposed by the council.

It is appropriate, with respect, to put the decision of the Court of Appeal in its proper perspective.

Fitzgerald AJA adopted the obvious purpose of the EIS referred to by Cripps J, as he then was, in Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417.

That definition of the purpose of the EIS was approved on appeal in Prineas , including the following rider added by Cripps J:-

… in my opinion, provided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decision-maker and members of the public and the Department of Environment and Planning to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standards imposed by the regulations. The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulations. In matters of scientific assessment it must be doubtful whether an environmental impact statement, as a matter of practical reality, would ever address every aspect of the problem. There will be always some expert prepared to deny adequacy of treatment to it and to point to its shortcomings or deficiencies.

In the Court of Appeal in Prineas Hutley JA (1984) 53 LGRA 160 at 164 put it in the following words:-

As the impact of developmental work may be of indefinite duration, and afford opportunities for further activity, no planner could prepare a statement which exhausts the possibilities of all development. The proponent must have the privilege of selecting what he proposed to develop. It may be an issue for consideration where the E.I.S. fails to give a full account of likely environmental impacts and it may be submitted that the proposal, as formulated, is a sham and a mere cover for a quite different type of development but, barring such a challenge, it does not seem to me that the fact that what is proposed could be seen as, possibly, part of a wider proposal is a relevant challenge to the E.I.S.

In Guthega Developments Pty Ltd v Minister Administering National Parks and Wildlife Act 1974 (NSW) (1987) 7 NSWLR 353 Samuels JA repeated his agreement with the opinion expressed by Cripps J in Prineas and also adopted the following statement by Hutley JA at p 163:-

It would not be too much to say that it is almost impossible to conceive an E.I.S. which literally complies with everything which the regulations require.

It must be the case that the Court of Appeal formed the view that the matter of the potential impacts of vibration from the compaction is such a fundamental issue that it must be regarded as inherent in the carrying out of the development and thus an essential topic for a detailed analysis in the EIS.

The importance of what was decided by the Court of Appeal in the present matter is highlighted by its earlier decision in Helman v Byron Shire Council (1995) 87 LGERA 349. In that case, a fauna impact statement required by the legislation was not lodged with the development application but was subsequently available for consideration on appeal to this Court. The late lodgement of the fauna impact statement by-passed the statutory requirement that such a document be available for inspection and consideration by the public and accordingly the objectors had no opportunity to consider it or make submissions based on it (Handley JA p 358-9).

Although it may have been open to refer the proceedings back to the Land and Environment Court for re-determination, the orders made in Helman were that the judgment of the Land and Environment Court be set aside and in lieu thereof an order that the development application be refused.

In the course of his judgment, Handley JA observed that decisions on the Act have established that substantial compliance with the obligation to prepare or submit an EIS is a condition of validity (see Prineas at 415, 418; Guthega Developments at 360, 408-409; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 at 380, 389; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 29-30; Gemsted Pty Ltd v Gosford City Council (1993) 78 LGERA 395; and Curac v Shoalhaven City Council (1993) 81 LGERA 124).

In Maybury on behalf of Kurri/Weston District Concerned Citizens Action Group v Minister of Planning & Alumino (Australia) Pty Ltd (1995) 87 LGERA 154 Stein J found that a development consent was void because of non-compliance with the provisions of s 84(1)(a)(ii) of the EPA Act. His Honour held that notification of the occupiers of neighbouring properties at that stage would be inappropriate and the development consent should be declared invalid. Nevertheless he went on to say at p 164:-

This does not mean that the whole process need begin again. There is no reason why the development application and environmental impact statement cannot be relied on by the applicant, and the Minister go about the process of complying with s 84 and the other relevant provisions of Pt 4 of the Act, see Holiday Villages (Byron Bay) Pty Ltd v Byron Council (unreported, Land and Environment Court of New South Wales, 28 February 1995). They remain afoot and it is not suggested that they are defective.

The distinction between the circumstances as they were found in Helman and those considered by Stein J in Maybury are that in the latter case there was no challenge to the validity of the development application.

The essence of the Court of Appeal decision in this case must be that the development application in its present form is not a valid one. Therefore the question now to be decided is whether the defect can be remedied at this stage to enable the applicant to rely upon the development application already lodged. This raises the issue as to whether the Court is entitled to continue to hear the appeal from the council's determination of the development application as originally lodged even after a supplementary EIS has been delivered to the council and exhibited in accordance with the provisions of the Act.

The Court has the same powers the council had when dealing with the original development application. In the present circumstances it is first necessary to decide whether the council is entitled to reconsider its decision, in the light of any further objections and submissions received, after an EIS which substantially complies with the provisions of the Act and regulations has been lodged and exhibited.

What the Court of Appeal has set aside is the determination of this Court, acting in the shoes of the council, to grant development consent. The development application considered by council and this Court on appeal may nevertheless become a valid application notwithstanding that originally it was not accompanied by a valid EIS as required by s 77(3)(d) of the EPA Act.

Even though it is open for the applicant to lodge a supplementary EIS with the council and for the council then to exhibit the original EIS and the supplementary EIS, in my opinion there will be no appealable decision until a further determination based on the new material is made by the council or there is a deemed refusal.

In Helman Handley JA cited the authority of Wielgus v Removal Review Authority (1994) 1 NZLR 73 at 77, 79 in support of his observation that the development application could not be accompanied by the fauna impact statement until the statement is lodged, but thereafter it is accompanied by the fauna impact statement. He went on to say, at 353, that the same result is reached if one construes s 77(3) as requiring substantial rather than strict compliance. This was achieved when the FIS was lodged. However in that case the council's obligation in s 86 to have all the documents accompanying the development application available for public inspection was never performed.

The Court does not go so far as to say there was no development application. It was made in the prescribed form as required by s 77. However, the council was not entitled to consider and determine it until s 77(3) was complied with by the lodgment of a valid EIS.

The council has not heretofore been in a position to consider the application properly in accordance with the statutory regime. It has a discretion to grant consent or determine the application by refusal of the consent. Until that happens, there can be no appeal from the exercise of that discretion. It is therefore my view that it is premature to decide whether or not the applicant should be entitled to maintain its appeal in the present proceedings. At the present time, in the light of the Court of Appeal decision, there is no jurisdiction to determine the development application in these proceedings.

The basis for an appeal is the determination or deemed refusal of a development application by the council irrespective of whether the EIS is valid ( Calvin v Carr (1979) 1 NSWLR 1). Once the appeal is lodged, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the council had in respect of the development application (s 39(2) of the Land and Environment Court Act).

Arguably the Court might abide the submission of an amended or supplementary EIS and further exhibition. However, the Court does not itself have the necessary facilities to carry out the administrative function of receiving and exhibiting an EIS, the giving of notices under s 84 or receiving submissions in respect of the development application. Nor am I persuaded that it has the power to direct the council to carry out those administrative functions in class 1 proceedings.

However, if the applicant elects to lodge further documents and the council accepts the responsibility for re-exhibiting, it would not thereby usurp a function of the Court under s 39(2). The section is an empowering provision for the purpose of hearing and disposing of an appeal. The administrative functions of processing, exhibition and notice are not contemplated by s 39(2) as necessary for the purpose of hearing and disposing of the appeal. The Court may nevertheless adjourn proceedings to enable those functions to be performed. It would not, in my view, be appropriate for the Court to make an order beyond granting an adjournment in the circumstances, notwithstanding s 23 of the Land and Environment Court Act.

There may be some residual utility in the present proceedings

There has already been eight days of hearing. Even if it is not practicable to deal with any subsequent appeal in the same proceedings, the Court has a wide discretion under s 38(2) and (4) and s 39(2) and (3), and generally, to adopt procedures which may facilitate the efficient disposal of issues in the future. Ultimately there could be advantages in terms of the expeditious or economic disposal of any subsequent appeal proceedings if this appeal is kept on foot.

The Environmental Planning and Assessment (Savings & Transitional) Regulation 1998 cl 11 protects the development application made. It therefore falls to be considered in accordance with the unamended Act. In my opinion it follows that SEPP 55 will not apply to the existing development application, except to the extent provided in cl 20.

Issues relating to the principles to be applied upon an application for leave to re-open raised by the respondent can be dealt with according to the circumstances as they might arise in the future.

The proper order in the present circumstances is that the appeal be stood over generally or to a fixed date to allow for lodgment, exhibition, submissions and further consideration to be restored upon the application of either party on seven days notice.

I agree with the applicant that the error identified by the Court of Appeal can be cured by at least the Land and Environment Court being satisfied that the applicant will complete the development within a five year period or by the issue of a consent pursuant to s 91AB of the EPA Act.

Whether this should be done must be assessed as a matter of discretion in the light of the final determination of the remediation application.

It is not inappropriate that this appeal be maintained on foot so that it can be re-considered in due course.

The order in proceedings No. 10466 of 1997 should also be that the appeal be stood over generally or to an appropriate date to be restored on seven days notice.

I hereby certify that this and the preceding 7 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot.

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.