Bay Simmer Investments Pty Ltd v State of New South Wales - [2017] NSWCA 135 - NSWCA 2017 case summary — Zoe

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Bay Simmer Investments Pty Ltd v State of New South Wales

[2017] NSWCA 135

Court of Appeal (NSW)|2017-04-21|Before: Basten JA, Leeming JA, Ms J, Pain J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2017-04-21

Before

Basten JA, Leeming JA, Ms J, Pain J

Catchwords

Pt 4, Div 2
Sch 1, cl 13 Cases Cited: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
[1982] HCA 24 Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499
[2014] NSWCA 149 Fordham v Brideson [1986] VR 587 Kuru v State of New South Wales (2008) 236 CLR 1

Source

Original judgment source is linked above.

Catchwords

Pt 4, Div 2Sch 1, cl 13 Cases Cited: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337[1982] HCA 24 Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499[2014] NSWCA 149 Fordham v Brideson [1986] VR 587 Kuru v State of New South Wales (2008) 236 CLR 1[2008] HCA 26 Minister for Immigration v SZJSS (2010) 243 CLR 164[2010] HCA 48 Pape v Commonwealth (2009) 239 CLR 1[2009] HCA 23 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527[2014] NSWCA 105 Texts Cited: M Leeming, Resolving Conflicts of Laws (Federation Press, 2011), pp 91-92

Judgment (15 paragraphs)

[1]

Solicitors: Clinch Long Woodbridge (Appellant) Crown Solicitor's Office (Respondents) File Number(s): 2016/310438 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2016] NSWLEC 123 Date of Decision: 21 September 2016 Before: Pain J File Number(s): 2015/40776

[3]

headnote [This headnote is not to be read as part of the judgment] On 1 July 2014, Arts NSW, a New South Wales government agency, lodged a development application for the "Walsh Bay Arts Precinct" with the Minister for Planning. On 21 May 2015, a delegate appointed by the Minister granted consent to the application. The appellant runs a restaurant business on the southern side of the development site. The sole director of the business had made submissions in response to the public exhibition of the development application opposing the development, primarily on the basis that no consideration had been given to the effects of the proposed construction phase on local businesses, including her own. On 3 September 2015 the applicant commenced proceedings in the Land and Environment Court challenging the validity of the consent on the basis that the delegate had failed to consider "construction-related impacts" as required pursuant to s 79C(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("Planning Act"). On 21 September 2016 the Land and Environment Court dismissed the proceedings, holding that it was permissible to defer consideration of construction-related impacts because the application was a "staged development application" pursuant to s 83B of the Planning Act. That section provides that an initial application which set out a development "concept proposal" would require further development application consents authorising the carrying out of any part of the proposed development. On appeal to this Court, an additional issue was raised as to whether the consent was invalid on the ground that it could not properly be characterised as a "staged development application" under s 83B. The questions on appeal before this Court were: (1) Was the proposal a "staged development application" within the meaning of s 83B of the Planning Act? (2) Did s 79C of the Planning Act apply to the application, requiring the Minister's delegate to consider any construction-related impacts of the proposed development? The Court (Basten JA, Leeming JA and Sackville AJA) allowed the appeal and held: In relation to question (1):

The structure, purpose and language of s 83B is not consistent with the formulation of a concept proposal which may be followed by only a single further detailed development application for the whole of the site: [27], [77]-[81]. Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149; Pape v Commonwealth (2009) 239 CLR 1; [2009] HCA 23; Fordham v Brideson [1986] VR 587, referred to.
There must be at least two detailed proposals for separate parts of the site: [37], [41].
There was no indication that Arts NSW intended to submit more than one further development application: [38], [41]. The consent was therefore invalid: [42]. In relation to question (2):
There is no basis in the language of the Planning Act or in the purposes of the provisions relating to staged development applications to exclude construction-related impacts from the assessment of a staged development application. As the delegate did not consider any construction-related impacts, the consent was invalid: [66], [83].

[5]

Issues in the litigation

On 3 September 2015 the appellant commenced proceedings in the Land and Environment Court challenging the validity of the consent. The primary basis of the challenge was that the delegate had failed to consider "construction-related impacts", which, it was alleged, were required to be considered pursuant to s 79C(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("Planning Act"). On 21 September 2016 the Land and Environment Court dismissed the application. [1] The deferred consideration of the impacts of construction was approved because the application before the delegate was a "staged development application" lodged pursuant to s 83B of the Planning Act. That provision expressly envisaged that an application which set out "concept proposals for the development of a site" would, if approved, require further consents authorising the carrying out of any part of the development.
The appeal to this Court, pursuant to s 58 of the Land and Environment Court Act 1979 (NSW), raised the same issues, relating to the deferral of consideration of construction-related impacts. However, in the course of the hearing of the appeal, an issue was raised as to whether the proponent's application was properly characterised as a "staged development application". The appellant submitted that, if it were not properly so characterised, it was either an invalid application or was dealt with on an invalid basis.
The additional issue was addressed in a proposed amended notice of appeal dated 1 May 2017 and accompanied by further submissions on behalf of the appellant. On 11 May 2017 the State responded, not opposing the granting of leave to amend, but addressing the issues of law which the amendments sought to raise. Accordingly, the appellant should have leave to file the further amended notice of appeal. The further grounds of appeal were as follows: "4. The Consent is invalid because the Walsh Bay Application was not staged development within the EPA Act: a. it did not contain two or more discrete proposals for development of the site, and did not identify that two or more detailed proposals for separate parts of the site would be the subject of subsequent development applications; b. it was not a development application within the meaning of s 78A of the EPA Act because this section did not authorise the lodgement of an application containing a concept plan for the development of the site, apart from s 83B(1). 5. In the alternative to para 4 above, if the Court finds that the Walsh Bay Application was not a staged development application but that it was nevertheless a development application within the meaning of s 78A, then: (a) s 79C applied to the determination of the Walsh Bay Application without any qualification; and (b) the Delegate misdirected himself by treating it as a staged development application, and by not considering the likely construction-related impacts of the WBAP."
The grounds of appeal as originally pleaded challenged a ruling on evidence (ground 3), rejecting an affidavit of Ms Kennedy, and two drafts of the Director-General's environmental assessment requirements, dated July 2013 and August 2013 respectively. It will not be necessary to deal with that ruling. Omitting particulars which identified stages in the reasoning process of the primary judge, grounds 1 and 2 were in the following terms: "1. The primary judge erred in finding that the Delegate, when deciding to grant the Consent, was not required to consider impacts arising from construction of the Proposal on the natural and built environments, and social and economic impacts in the locality, pursuant to s 79C(1)(b) of the [Planning Act]. … 2. The primary judge erred in finding that the Delegate, when deciding to grant the Consent, was not required to consider submissions made in accordance with the [Planning Act] insofar as they related to impacts arising from construction of the Proposal, pursuant to s 79C(1)(d) of the Act. …"
Although the primary judge found that the delegate had not in fact had regard to the adverse construction-related impacts on local businesses, including that run by the appellant, the respondent filed a notice of contention seeking two additional findings. The first was that such impacts were not "matters … of relevance", for the purposes of s 79C(1) and did not need to be considered on that ground, which was consistent with the conclusion of the primary judge. In the alternative, the respondent submitted that if construction-related impacts were matters of relevance, they were in fact taken into account, to the extent that that was necessary. Further, the notice of contention stated that it would be futile to grant relief because the consent did not authorise the carrying out of the development and the relevant impacts would be assessed in the course of determining a subsequent development application.
It is apparent that there is a significant overlap between the issues surrounding the proper characterisation of the development application and the manner in which it was considered. Those issues must be addressed in the context of the statutory scheme under the Planning Act. Accordingly, it is convenient to commence by identifying the relevant provisions of the Planning Act and then address the scope and nature of the development application.

[6]

Structure of Planning Act

The broad scheme of the Planning Act depends on a tripartite classification of development on land as "exempt development" (being development which can be carried out without development consent), "prohibited development" (which cannot be carried out with or without consent) and "development that needs consent" (which is prohibited unless such consent is obtained). Where, as in the present case, consent is required, further classification may be necessary in order to determine who is the consent authority and what preconditions must be satisfied in seeking consent. The current proposal was identified as "State significant development" as it involved a "cultural facility" with a capital value of over $30 million. [2] Provisions in Div 4.1 of Pt 4 were engaged, including s 89D: 89D Minister consent authority for State significant development (1) The Minister is the consent authority for State significant development. Note. Section 23 enables the Minister to delegate the consent authority function to the Planning Assessment Commission, the Secretary or to any other public authority. [3] (2) If a staged development application is made under Division 2A in respect of State significant development: (a) the Minister may determine that a subsequent stage of the development is to be determined by the relevant council, and (b) that stage of the development ceases to be State significant development and that council becomes the consent authority for that stage of the development instead of the Minister.
There were other provisions in Div 4.1 relevant to the application of the general provisions in Div 2 in relation to State significant development. 89H Evaluation of development application (s 79C) Section 79C applies, subject to this Division, to the determination of the development application. Note. Section 80 (7) provides that if a review is to be conducted by the Planning Assessment Commission into proposed State significant development the Minister is not to determine the development application until after the review has been conducted and consideration given to the findings and recommendations of the Commission. … 89L This Division prevails The provisions of this Division, the regulations under this Division and any other provisions of or made under this Act with respect to State significant development prevail to the extent of any inconsistency with any other provisions of or made under this Act relating to development to which this Part applies.
The general provisions relating to the assessment of development applications are set out in Pt 4 Div 2 and relevantly for present purposes include the following: 78A Application (1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development. … (2) A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)-(f) of the definition of development in section 4(1). … 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: ... (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.
Development is defined in s 4(1): 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … development means: (a) the use of land, and … (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, … ….
The provisions relating to "staged development applications" are contained in Div 2A of Pt 4 of the Planning Act. The operative provisions are as follows: 83B Staged development applications (1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development. (2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application. (3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. (4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3). 83C Staged development applications as alternative to dcp required by environmental planning instruments (1) An environmental planning instrument cannot require the making of a staged development application before development is carried out. (2) However, 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, that obligation may be satisfied by the making and approval of a staged development application in respect of that land. Note. Section 74D(5) also authorises the making of a development application where the relevant planning authority refuses to make, or delays making, a development control plan. (3) Any such staged development application is to contain the information required to be included in the development control plan by the environmental planning instrument or the regulations. 83D Status of staged development applications and consents (1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application. Note. Applicable provisions in respect of staged development applications include provisions relating to designated development, integrated development and regulations made under section 105. (2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent. (3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application. Note. See section 95 (2) which prevents a reduction in the 5 year period of a development consent.
Division 2A is intended to fit within the broad structure of Pt 4, dealing with the assessment of development, including ss 79C, 80 and 80A which provide for the evaluation of development applications, their determination and the imposition of conditions. When s 83D(1) provides that such provisions apply to a staged development application, it recognises the possibility of inconsistency, stating that the other provisions apply "except as otherwise provided by … this … Act", which includes the provisions of Div 2A itself. This may be described as an internal paramountcy provision.
Section 83D(2) goes further, dealing with inconsistency between a consent with respect to a staged development application and the determination of subsequent development applications. This may be called the paramount consent principle. However, while such provisions seek to resolve cases of inconsistency, [4] they do not assist in identifying what constitutes inconsistency in a particular situation.
It may be remarked that the multiple use of paramountcy provisions, by which provisions of one division are said to prevail over "any other provisions" of the same Act or, indeed, other legislation, may be apt to lead to confusion. In the present case, there was potential for confusion arising from the recognition in Div 4.1 that there could be a staged development application made under Div 2A with respect to State significant development.
With respect to internal paramountcy, the question is to what extent Div 2A removes or qualifies the operation of s 79C with respect to factors to be considered by a consent authority in determining a development application. With respect to the paramount consent principle, the appellant emphasised the requirement that no subsequent development application could make inconsistent provision with respect to the development of the site. There could be an issue as to the extent to which the possibility of imposing conditions on the construction of the precinct had been foreclosed by giving consent to the "concept proposal".
The issue raised by the fresh ground of appeal involved the application of s 83B to the "concept proposal" to which consent had been granted. It is convenient to consider next the operation of that provision in relation to the specific proposal in question.

[7]

(a) the application

A specific application form is provided for State significant development and was used by the proponent. The application lodged on 1 July 2014 was a skeletal document. It identified the proposal as: "Stage 1 SSDA for an integrated performing arts and cultural precinct together with an enhanced public domain at Wharf 4/5 and Pier 2/3, Walsh Bay."
In section 4 the application form asked, "[a]re you applying for development consent in stages?" The box alongside the word "Yes" was marked. The form required that, in such a case, the proponent attach "information which describes the stages of your development". Section 10 (which followed the applicant's signature) was headed "Accompanying documents (to be included as part of EIS)". The form indicated that a site plan and a sketch of the development had been attached, together with an environmental impact statement ("EIS").
The information describing the stages of the development was apparently to be gleaned from the EIS, as submitted on behalf of the State. Relevantly, both the executive summary and the introduction to the EIS contained the following statement: "This Stage 1 SSDA seeks 'in principle' approval for the overall WBAP concept only. It will be followed by one or more detailed SSDAs for the construction of the public domain, building alterations and specific uses. The purpose of this concept SSDA is to provide an overview of the project and potential impacts across the precinct, and to establish a framework for the future detailed design, land use and construction works required to deliver the proposed WBAP project."
The first sentence in this statement excluded the possibility that the application set out detailed proposals for the first stage of development as permitted by s 83B(1). Although the second sentence envisaged "one or more" detailed development applications "for the construction of the public domain, building alterations and specific uses", the language did not commit the proponent to more than one further application, nor did it specify "separate parts of the site" which were to be the subject of a subsequent application or applications. The question is whether, to comply with s 83B(1), it was necessary for the proponent to identify the separate parts of the site for which detailed proposals were to be the subject of further development applications.

[8]

(b) elements of s 83B

Section 83B(1) envisages the development of a site which will take place in stages; that is, "separate parts" of the site will be developed sequentially. The development of the separate parts may take place sequentially in accordance with "concept proposals" which have been the subject of a single initial application. The purpose of this scheme is tolerably clear: from the point of view of the developer, it allows certainty that the whole of the sequential development will be permitted if it is in conformity with consent given to the concept; from the point of view of the consent authority, in approving one part of the development, it will know how that part fits within the overall concept for the site. Potential objectors will also benefit from the initial overview of what might otherwise appear to be piecemeal development.
Section 83B(1) envisages that further applications will be made with respect to "detailed proposals" for separate parts of the site. Section 83B(3) prohibits the carrying out of development on any part of the site until a further development application has been granted in respect of that part of the site. However, both subsections allow for an initial application setting out concept proposals to include "detailed proposals for the first stage of development."
The scheme provided by Div 2A is not directed to applications with respect to "concept proposals"; it is directed to the staged development of a site, by reference to its separate parts. The proponent must request that the application be treated as a staged development application, in accordance with s 83B(2), and, it should be inferred, must set out in the application the manner in which the development is to be staged and thus subject to subsequent development applications. Those elements follow from two aspects of s 83B(1). First, the reference to "concept proposals" (plural) is consistent with the need to identify proposals for separate parts of the site. Secondly, and consistently with that language, the application must reveal that detailed proposals for separate parts of the site "are to be", that is in the future, "the subject of subsequent development applications".
This structure is not consistent with the formulation of a concept proposal which may be followed by a single detailed development application for the whole of the site. The issue raised by the amended grounds of appeal is whether the application by ArtsNSW satisfied these requirements of s 83B.

[9]

As noted above, the application described the development as "an integrated performing arts and cultural precinct together with an enhanced public domain at Wharf 4/5 and Pier 2/3, Walsh Bay." Although in s 4 the application form required information which "describes the stages of your development", the form as submitted did not do that. However, such information might be gleaned from the EIS which accompanied the application and was prepared on the instructions of the proponent.
The EIS repeated the description of the proposal as an integrated performing arts and cultural precinct, and described the application as a "Stage 1 SSDA". Although the site was said to comprise four specific elements, being the pier, the wharf, shore sheds and the area of water between the wharf and the pier, at no point did it identify sequential development. Indeed, it expressly left that aspect unaddressed, stating that the "in principle" approval "will be followed by one or more detailed SSDAs for the construction of the public domain, building alterations and specific uses." [5] This language is used consistently through the EIS. [6] The conclusion to the EIS is a request that "the Minister approve the State Significant Development Application (SSDA) under Section 89E of the EP&A Act." [7] Significantly, there is no express request (although one may be inferred from the earlier statements) to deal with the application as a staged development application. Importantly, there is no statement in the EIS that the development will be carried out in sequential stages.
The absence of a request and the absence of any identification of the proposed stages is significant. A staged development will have environmental consequences. On the one hand, the intensity of development activity may be lessened, if only because the time taken for the development would be extended. The issue as to what factors are to be assessed in relation to a staged development application, by comparison with a unitary development application in accordance with s 78A, will be addressed below. The present question is whether what purported to be a staged development application, requiring approval only of the "concept", was indeed an application which fell within s 83B.
The submissions on behalf of the State in response to the substance of the proposed amendment stated that the appellant's case turned on two propositions with respect to the application, namely that: [8] "a. it did not contain two or more discrete concept proposals for development of the site; and b. it did not identify that two or more detailed proposals for separate parts of the site would be the subject of subsequent development applications."
The State submitted that, on its proper construction, s 83B(1) did not prescribe these matters as essential characteristics of a staged development application. [9] Rather, the application contained "an indication about the future detailed proposals for separate parts of the Site", which was sufficient to comply with the requirements of s 83B(1). [10] However, the identification of the two separate issues and the focus on a particular word or phrase in isolation did not allow a proper understanding of the intended operation of the section.
The State submitted that little weight should be given to the use of the plural form, "concept proposals", as excluding the singular. As the State fairly submitted, assuming that there is to be a staged development, it would make good sense to speak of "a proposal" which encompassed all stages. Further, the State submitted that the EIS in fact set out three separate concept proposals, for the pier, the wharf and the "public domain". [11] (On one view, it identified four areas, not three.)
Dealing with the second issue it had identified, the substance of the State's submission was that s 83B(1) does not require that a staged development application "identify" or "envisage", as submitted by the appellant, the intention to lodge two or more detailed proposals with respect to separate parts of the site. Such a requirement, it was submitted, "would be a triumph of form over substance". [12] In support of this contention, the State submitted that the first sentence in s 83B(1) had two discrete elements. The first was that which the development application must set out, namely "concept proposals for the development of [the] site" and, secondly, the discrete requirement that there "are to be" detailed proposals for separate parts of the site which will be the subject of subsequent applications. The latter, it was submitted, did not need to be identified in the staged development application.
That construction, as a matter of syntax, is available. That is so because the use of the passive voice ("are to be") tends to obscure the fact that it must be part of the proponent's proposal that there be subsequent detailed proposals for separate parts of the site. As noted above, the manner in which the site is to be developed may be of some importance in assessing a staged development application. An undisclosed intention will not allow for such an assessment. Accordingly, the preferred construction of the sentence, taken as a whole, is that the element of the proposal which involves the sequential development of separate parts of the site should be set out in the application.
In responding to the submission for the appellant that references in the EIS to "one or more" subsequent applications were "fatal" to the validity of the application, the State submitted: [13] "As set out above, there is nothing in s 83B which mandates that there be multiple development applications setting out the detailed proposals. In any event, to invalidate the entire Application because of an indication that the making of a single subsequent development application was merely a possibility would, as mentioned above, represent the ultimate triumph of form over substance."
The first sentence was correct, but only in a particular case. Where the staged development application includes a detailed application with respect to part of the site, described as "that first stage of development" in s 83B(3), it may be said that there can be a staged development even if only one further detailed development application is envisaged. However, that was not this case. Putting that exception to one side, it is not merely the language, but the underlying purpose and structure of the section which require that there be detailed proposals for separate parts of the site, and would not be satisfied by a single detailed development application for the whole site. Even where the exception applies there will be at least two detailed proposals for separate parts of the site.
With respect to the next sentence in the submission, the problem was not that the application indicated that the making of a single subsequent development application was "merely a possibility"; rather, the problem was that the application indicated that there was a mere possibility that there might be a staged development. It was not open to the consent authority, or the Court, to be satisfied that there "are to be" two or more detailed proposals for separate parts of the site. In fact, as will be noted below, the consent authority was not so satisfied; nor did the trial judge make such a finding. The refusal of the proponent to commit itself to such a position is not to be inferred from some imprecise or ambivalent statement; it was, as noted above, a position deliberately taken and consistently reiterated in the application itself and in the EIS.
Although there was a dispute between the parties as to whether it was proper to take the terms of the EIS into account in addressing this question, the State being of the view that it could and should be taken into account, on either approach (the documents being consistent in this regard) the same conclusion is reached.
This conclusion is consistent with the explanation given by the Minister in the second reading speech for the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill 2005, which inserted Div 2A in Pt 4 of the Planning Act. The Minister stated: [14] "Schedule 3 to the bill provides for the existing provisions in the Act for staged approvals to be augmented with the introduction of procedures for the lodgment, assessment and approval of staged development applications. This will enable developers to stage complex developments with clear procedures for obtaining approvals for the development. Section 83B provides that a staged development application may set out an overview of the proposal across the whole site, with the details of each separate component of the development to be subjected to subsequent development applications. Alternatively, a first stage development application may include both the concept for the entire site and a detailed proposal for the first component of the development."

[11]

(a) nature of issues

Given the findings as to invalidity set out above, there is a question as to whether it is necessary or appropriate to determine the other grounds relied upon by the appellant. No doubt anticipating that the State would submit, as it did, that no order should be made against it for the costs of the appeal in the event that the appellant succeeded on the new grounds, the appellant invited the Court to address the original grounds of appeal. It also envisaged the possibility of an appeal to the High Court, invoking the principle in Kuru v State of New South Wales. [18]
Although the principle stated in Kuru is merely that the Court should "consider whether to deal with all grounds of appeal", that course should be taken in a case which is clearly of some public importance given that the development is defined as "State significant development". As noted in the preceding discussion, the construction of s 83B which requires a statement in a staged development application as to the manner and timing of the development of separate parts of the site is justified in part on the basis that this information is relevant to the assessment of a staged development application. Further, the same failure to comply with this requirement led to the failure properly to assess the application, as will be explained below.
It was consistent with the State's position in relation to this issue, namely that no assessment of construction-related impacts was required in relation to a staged development application, that it conceded that this was not an application under Pt 4 for the carrying out of development and, if it did not qualify as a staged development application, was invalid. However, that position left open the question as to whether, and if so to what extent, the requirements of s 79C(1) of the Planning Act applied to a staged development application.
It was not submitted that any express provision of the Planning Act precluded some application of s 79C. Rather, the issue was whether, in circumstances where any further development application could not be inconsistent with the consent given to the staged development application, some consideration of construction-related impacts was required at the first stage. It was, in part, because of the difficulty in considering how construction would occur, in the absence of any clear indication as to the stages of the proposed development, that the question whether the present application complied with s 83B arose.

[12]

(b) scope of assessment undertaken

It was accepted that, although the Minister's delegate did not give written reasons for granting the consent, those reasons were to be found in an Environmental Assessment Report prepared by a delegate for the Secretary of the Department in May 2015 ("Secretary's report"). [19] That report stated in its Executive Summary: "As the current application does not seek approval to undertake any construction works or immediate use of the precinct for events, the Department is satisfied that the environmental, construction and operational issues raised in submissions can be largely addressed through the imposition of future environmental assessment requirements. Such requirements will be required to be addressed at the relevant future development application stage by the relevant consent authority."
The primary submission for the State, accepted by the trial judge, was that no assessment of construction-related impacts was required because the application sought approval only for the "concept". In the alternative, and despite the statement set out above, the State submitted that the delegate did in fact consider construction-related impacts. This alternative was not considered by the trial judge, but was the subject of a notice of contention on the appeal.
The Secretary's report did not eschew this part of the evaluation potentially available under s 79C(1) as not relevant. Rather, in section 5 "Assessment" it set out a table of the matters for consideration which included, in relation to par (b), the conclusion "Satisfactorily complies", with a reference to "Section 5 of this report".
The Secretary's report identified the key environmental issues to be assessed as follows: "● heritage impacts (built form and public domain); ● events; ● noise impacts; ● traffic and transport; ● marine impacts; ● contamination; and ● other matters."
Although not directly relevant to the issue raised by the appellant on the appeal, with respect to "events" the Secretary's report recommended that "a detailed Draft Event Management Plan (Draft EMP) be submitted for each future event development application" [20] and concluded that the Department was satisfied that "the Draft EMPs will provide the consent authority with additional information to better regulate the use of the precinct", [21] when operational. Similar recommendations were made with respect to noise impacts resulting from the use of the precinct when completed. Under "Other Matters" the Secretary's report dealt with "Construction Impacts" in the following terms: [22] "As detailed above, the proposal does not seek approval for any construction works. Furthermore, the applicant has advised that the staging and scope of future applications has not been determined at this stage. This being the case, it is relevant that matters relating to potential construction environmental impacts be fully considered at the future environmental assessment stages of the development. Accordingly, the Department has recommended that the applicant prepare and submit a detailed overarching Construction Framework Environmental Management Plan [CFEMP] with the first development application. Further to the above, the Department has recommended that sub-plans be prepared for each subsequent application to specifically address the following requirements: ● demolition and construction waste management; ● construction-related noise and vibration; ● dust control; ● marine and ground water management; ● construction runoff and sediment control; and ● acid sulphate soil management. … Subject to the above, the Department is satisfied that the CFEMP and the sub-plans will provides [sic] a suitable framework for managing the construction works associated with the future development of the Walsh Bay Arts Precinct. Detailed consideration of the specific construction related impacts of the project, as well as mitigation and management measures to offset potential impacts can also be considered in the assessment of future development applications."
Most of the recommendations referred to above were reflected in the conditions identified in Schedule 2 of the development consent, which contained two parts, being "Part A - Administrative conditions" and "Part B - Conditions to be met in future stages". However, neither Part A nor Part B imposed any conditions with respect to construction-related impacts of the kind which concerned the appellant. There was no reference to the CFEMP. There was, however, reference to marine sediment testing (B1), and marine and groundwater impacts (B10 and B11). Condition A8 required the establishment of a Walsh Bay Arts Precinct Working Group to be convened by the proponent and to include representatives of various local government and State government authorities. The Secretary's report recommended the establishment of such a working group, "to assist with the design resolution of the proposal, and [to] be consulted in relation to the preparation of the urban design guidelines, and the finalisation of the Operational Plan of Management and Operational Event Noise Management Plan". [23]
The present statutory context, as the State correctly submitted, involves an assessment of the relevance of the particular matter to the development the subject of the application. The statement in the Secretary's report that "it is relevant that matters relating to potential construction environmental impacts be fully considered at the future environmental assessment stages of the development" is somewhat obscure. One inference is that the Secretary, having expressly identified construction-related impacts, put them to one side as not capable of assessment on the available material. An alternative inference may be that construction-related impacts were dismissed as irrelevant. On either view, that is not a process of considering the substance of the impacts, but rather stating that they either cannot or should not be considered at that stage.

[13]

Section 79C of the Planning Act identifies matters which the consent authority "is to take into consideration", to the extent that they "are of relevance to the development the subject of the development application". The relevant factor for present purposes was that set out in s 79C(1)(b), namely "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality".
There was no dispute that construction-related impacts, including impacts on the business operations of the appellant, would fall within that requirement to the extent that they were relevant with respect to the staged development application. It was also accepted that the Minister was required to take into account submissions made in respect of such matters, pursuant to s 79C(1)(d). Finally, there was no dispute that the issue had been raised by the appellant in submissions to the Minister.
As explained at some length in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc, [24] there is a plethora of cases discussing the nature of the legal obligation to have regard to, or consider, a particular matter. It has sometimes been said that the obligation is to give "proper, genuine and realistic consideration" to the matter. This language has been referred to in a series of cases (including recently in Minister for Immigration v SZJSS, [25] an authority not referred to in Warkworth). Accepting that the weight to be given to a particular factor is a matter for the decision-maker and not the court on a judicial review application, the difficulty is to articulate a legal standard between a level of consideration which appears to be cursory or dismissive (and therefore inadequate) and a level of consideration which requires an assessment of the conclusions reached by the decision-maker (and is therefore beyond the role of the court). Little more can be said by way of judicial exegesis than that the standard will depend upon the subject matter and purpose of the consideration, in a given statutory context.
That leaves the principal question raised by the appellant, as to whether the delegate was required to consider construction-related impacts in granting consent to the application. As he did not do so, if he were required to, the consent was invalid.
It is at this point that the present issue overlaps with the first issue, namely the validity of the application. Although the Secretary's report consistently assumed that there would be "future development applications", it also noted that "the applicant has advised that the staging and scope of future applications has not been determined at this stage." [26] At that point, the Secretary had two courses open to him. One (not taken) would have been to decline to deal with the application until the proponent had identified the proposed stages of construction. Had that course been taken, the validity of the application (on the ground considered above) would no longer have been in question. The alternative approach (which was adopted) was to address the application as it stood, without being able to assess construction-related impacts. That approach was only valid if construction-related impacts were not relevant to the application, assuming for this purpose that it was a valid application.
The application of s 79C(1) with respect to a staged development application arises in two ways. First, s 83D(1) provided that other provisions of the Act relating to "development applications" apply to a staged development application. Further, because this application concerned "State significant development" s 89H (in Div 4.1) expressly provides that, "subject to this Division", s 79C applies to the determination of the development application. The only constraint on the operation of s 79C is to be found in the chapeau, limiting the matters that are to be taken into consideration to those which are of relevance to the development the subject of the development application. Assuming, as the Minister's delegate did in adopting the reasoning in the Secretary's report, that the social and economic impacts in the locality were to be taken into account, there was no self-evident reason to limit those impacts to impacts flowing from the existence and operation of the development, once carried out, and excluding the impacts of the carrying out of the development.
The primary judge rejected this approach. In a passage accepting the submissions of the State, the judge said: [27] "As the First Respondent submits, the SSDA does not seek approval for demolition, construction, erection or the use of land, most relevantly, or subdivision, less relevantly. These are the matters identified in the definition of development in the EPA Act. This SSDA does not seek consent for development as defined in the EPA Act. No carrying out of development can occur as a result of approval of this SSDA as provided in s 83B(3)(a)."
The distinction between an application seeking consent for concept proposals and an application seeking consent for the carrying out of development was carried through in the judge's reasoning. [28] The primary judge also referred to the fact that the documentation supporting the staged development application "was directed to assessing the project as built and used and addressed s 79C(1) matters in that context." [29] The judge noted a submission by the applicant before her, repeated by the appellant in this Court, to the effect that requiring a further approval before construction could be undertaken was similar to the requirement, pursuant to s 81A, that construction of a building is not authorised until a construction certificate has been granted. Nevertheless, even in that situation the assessment of the development application cannot ignore the likely impact of the construction. The judge rejected the analogy in the following terms: [30] "This SSDA is not however for the erection of a building. The construction of the project is not part of the subject matter of the SSDA approved."
It would be curiously artificial to assess any development application on the basis that the completed development had simply materialised, without regard to how it had materialised. As the appellant submitted, the social and economic impacts of carrying out the development may adversely affect persons in the locality in a way and to a degree that use of the development as constructed would not. Alternatively, conditions might be imposed on the manner of construction which would render the proposal no longer financially viable. An illustration may be found in the facts of the litigation leading to two judgments in the High Court, the principal one being Codelfa Construction Pty Ltd v State Rail Authority of New South Wales, [31] although the case involved a contractual dispute. The case arose out of the construction of the eastern suburbs railway in Sydney. The construction company sought to operate three shifts a day, seven days a week. However, because of the noise and vibration, the company was constrained to operating between 6am and 10pm. Significant additional costs were incurred. In seeking a consent to the proposed rail link, it would have been irrational to disregard the impacts of the construction stage, unless a statute required it.
The second reading speech of the Minister with respect to the Bill introducing staged development applications has been quoted above. [32] The appellant also referred to the Minister's remarks in the same speech, in relation to the concept plan process introduced in Pt 3A, that the purpose was to "increase certainty up front and reduce environmental and investment risks and costs". [33] Both purposes may be gleaned from the express provisions of Div 2A. It would not promote either purpose to exclude from the assessment process at the initial stage any consideration of the impacts of construction, by limiting the assessment process to the impacts of the constructed development.
Such benefits do not accrue only to the developer; if they did, it might be argued that, by excluding details of the means of construction and the timing of the construction, it would be open to the developer to avoid assessment of that part of the development. The facts of the present case, however, illustrate why businesses and residents in the locale have an interest in the construction process being part of the assessment. Speaking hypothetically, but in terms not far removed from the position of the present appellant, a local business may be expected to benefit from the development as constructed; but if, through an extended and disruptive construction process, the business fails, it will not be there on completion to reap any benefits.
Further, the fact that consent to a staged development application will not allow any activity to be carried out does not alter the fact that the development application is an application to carry out "development", which includes the use of land, the erection of a building and the carrying out of a work. There is no basis in the statutory scheme to conclude that any part of the definition is not engaged by a staged development application dealing with "the development of a site". [34]
The reasoning of the primary judge, adopting submissions by the State, placed weight upon the distinction drawn by Div 2A between "concept proposals", which were to be the subject of the staged development application, and "detailed proposals" for separate parts of the site, which were to be the subject of subsequent development applications. However, that distinction does not bear upon the present issue. There is no reason as a matter of statutory construction to suppose that the greater detail envisaged in the subsequent applications operates differentially with respect to construction-related impacts, as compared with the operational impacts of the completed development.
Accordingly, there was no basis in the language of the Planning Act, in the purposes of the provisions relating to staged development applications, or the provisions relating to State significant development to exclude construction-related impacts from the assessment of a staged development application. For these reasons, the appellant was entitled to succeed on its primary submission before the trial judge, which was reflected in ground 1 of the notice of appeal (referring to failure to consider construction-related impacts) and ground 2 (referring to submissions with respect to construction-related impacts).

[14]

Conclusions

The Court should make the following orders: 1. Grant the appellant leave to file the amended notice of appeal dated 1 May 2017. 2. Allow the appeal and set aside the orders made in the Land and Environment Court on 21 September 2016 dismissing the amended summons with costs. 3. In place thereof, 1. declare that development consent No SSD 6069 granted by the Minister's delegate on 21 May 2015 is invalid; 2. set aside the development consent; 3. order that the State of New South Wales pay the applicant's costs in the Land and Environment Court. 1. Order that the State of New South Wales pay the appellant's costs in this Court.
LEEMING JA: I have had the advantage of reading the reasons in draft of Basten JA. I agree with those reasons, and the orders proposed by his Honour. I add the following by way of elaboration on the two main issues on the appeal.
It is convenient to repeat s 83B(1) which defines what is meant by a "staged development application": "For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development."
The provision distinguishes between "concept" proposals and "detailed" proposals. Approval of the former does not of itself authorise development (s 83B(3)), but does constrain subsequent development on that site, because s 83D(2) prevents subsequent determinations of development applications from being inconsistent with it.
Can there be a "staged development application" where the initial application is confined to concept proposals and there is to be only a single application containing detailed proposals for the whole of the site? The starting point is to consider the statutory text, from which the following points emerge.
First, the provision is replete with plural forms: "concept proposals", "detailed proposals", "separate parts of the site" and "subsequent development applications". But little turns on this. Legislation commonly uses plural language to include the singular, and indeed s 8(c) of the Interpretation Act 1987 (NSW) provides that a reference to a word or expression in the plural form includes a reference to the word or expression in the singular form.
Recognising that the rule of construction in the Interpretation Act (like the others in the Act) only applies "except in so far as the contrary intention appears in this Act or in the Act or instrument concerned" (s 5(2)), a safer guide to construction is to have regard to the sense of the provision as a whole. When that is done, it may be seen that the words "subsequent development applications" must include the singular, because the second sentence of the provision makes it plain that the application may include both concept proposals and detailed proposals capable of being the subject of development consent, and there is nothing to support an intention that, in such a case, there needs to be more than one subsequent application.
Similarly, there is an inevitable measure of arbitrariness in determining whether there is a single "concept proposal" or more than one "concept proposal". The word "proposal" is broad enough to connote one, or more than one, concept. The point of the distinction drawn by the provision between concept proposals and detailed proposals is that the former will be at a relatively high level of abstraction. Minds might differ as to whether a stage and a pavilion for seating, with underground carparking, is one "concept proposal" or two or three, although the provision contemplates that all aspects of the proposal or proposals will be contained in the same development application. Considerations of that nature persuade me that nothing material for present purposes turns on the plural "concept proposals".
The position is not so clear in the case of the words "detailed proposals" when considered alone. But the structure of this clause of the first sentence of s 83B(1) contains three plurals: "detailed proposals", "separate parts of the site" and "subsequent development applications". Neither the grammar of the clause nor its meaning determines whether the "detailed proposals" or the "separate parts of the site" are the subject of the words "are to be", but nothing presently relevant turns on this. But two matters which are significant to the first issue in this appeal do emerge.
First, the words "are to be" are words which, in this context, are not merely future‑looking but impose an obligation: see for example Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 at [31]. The same point was made in Pape v Commonwealth (2009) 239 CLR 1; [2009] HCA 23 at [81] to the effect that the words "to be appropriated" in s 81 of the Commonwealth Constitution impose a requirement that revenues be appropriated in the manner specified by the section. As French CJ there observed, "They are words of constraint".
Secondly, I turn to the meaning of "separate parts of the site". Putting to one side the question whether the plural is to be read as including the singular, the requirement that the parts of the site be "separate" is consistent only with there being two or more such parts. Another way of putting this is to observe that the inclusion of the singular in references to the plural is insufficient to displace the ordinary meaning of separate parts of the site.
This is related to the reasoning given by Brooking J in Fordham v Brideson [1986] VR 587 at 591: "Some words may readily be used in the plural in a way which shows that the speaker contemplated not a single instance of the object named but only a plurality." Coincidentally, one of the examples given by his Honour is quite similar to the language in s 83B(1): "A power to determine the stages by which building works are to be performed ... may be viewed as not authorising the determining authority to require all work to be done in a single stage."
Thirdly, the same construction is confirmed by the concluding words of the subsection, "the first stage of development". Those words on their ordinary meaning imply that there will be a subsequent stage of development. Putting the point differently, those words sit uneasily with the possibility that there will only ever be a single application containing detailed plans for the whole of the site.
Finally, as Basten JA has observed, this construction is supported by the explanation given in the Minister's second reading speech.
In relation to the second issue in the appeal, it was common ground that s 79C applied to the determination of the application, which required the consent authority to take into consideration, inter alia, the likely impacts of "that development". The ultimate question is whether by confining the concept proposals to the completed use, and expressly excluding the construction phase necessary to achieve that completed use, assessment of the construction phase may be deferred at the time that consent is given to the concept proposal.
It is not necessary to determine this appeal to express a view as to whether in any circumstances that would be possible. In the present case, the concept proposals were articulated voluminously and with a deal of specificity, including by reference to detailed engineering plans (descending to the engineering specifics of the piers on which the new public space was to be built). There is no sound reason to confine the assessment required by s 79C only to the completed use of the concept proposals the subject of this application, and exclude from that assessment the inevitable impact of the construction phase.
It is convenient to return to the example earlier mentioned of the stage and seating pavilion with underground carparking. The location on the site of those elements may have a differential impact upon neighbours during the construction phase, particularly if the underground carparking requires extensive excavation. There is no sound reason for precluding a neighbouring landowner whose business is affected during the construction phase from making a submission that, say, the carpark would be better located on the other side of the site. Indeed, it will be too late to make that submission after the concept proposal is approved, because subsequent development applications must not be inconsistent with the concept proposal as approved. Considerations of that nature confirm, to my mind, that the assessment required by the Act could not, in the case of this development application, be circumscribed so as to exclude impacts from construction.
SACKVILLE AJA: I agree with the orders proposed by Basten JA and his Honour's reasons. I also agree with the additional observations of Leeming JA.

[15]

Endnotes

Bay Simmer Investments Pty Ltd v The State of New South Wales [2016] NSWLEC 123 (Pain J).
Planning Act, s 89C(2); State Environmental Planning Policy (State and Regional Development) 2011 (NSW), cl 8(1), Sch 1, cl 13(1).
Section 23(1)(a) of the Planning Act also permits delegation to any employee of the Department.
M Leeming, Resolving Conflicts of Laws (The Federation Press, 2011), pp 91-92.
Emphasis added.
Executive summary, p viii; Introduction, pp 1- 2; Section 5, Concept description, p 24; Section 9, Justification and conclusion, p 88.
EIS, p 89.
Written submissions, 11 May 2017, par 6.
Written submissions, par 7.
Written submissions, par 36.
Written submissions, par 21.
Written submissions, par 25.
Written submissions, par 39.
Hansard, NSW Legislative Assembly, 27 May 2005, p 16338.
Secretary's Environmental Assessment Report, May 2015, p 31.
Written submissions, par 42.
Written submissions, par 43.
(2008) 236 CLR 1; [2008] HCA 26 at [12] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
Statement of Reasons, 4 February 2016, filed for the Minister.
Secretary's report, p 21.
Secretary's report, p 22.
Secretary's report, p 31.
Secretary's report, p 32.
(2014) 86 NSWLR 527; [2014] NSWCA 105 at [181]-[235] (Bathurst CJ, Beazley P and Tobias AJA).
(2010) 243 CLR 164; [2010] HCA 48 at [26]-[37] (the Court).
See at [51] above.
Judgment at [39].
See also judgment at [47], [48], [65].
Judgment at [41]; see also at [45].
Judgment at [56].
(1982) 149 CLR 337; [1982] HCA 24.
See [40].
Second Reading Speech, Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill 2005 (NSW), NSW Legislative Assembly, 27 May 2005, p 16335.
Planning Act, s 83B(1). 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: 15 June 2017

Bay Simmer Investments Pty Ltd v State of New South Wales

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