Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Limited

Issues for determination

1. The parties agreed on a list of real issues for determination. The questions were clarified by the Applicant during the hearing and were agreed to be as follows: 1. Was the construction of a 66 kV Power Line "part of a single proposed development that is State significant development" within the meaning of s 4.38 of the EP&A Act 1979? 2. If so, were the 66 kV Power Line and its impacts required to be considered by the consent authority before it granted development consent for the Bowdens Silver Project development application by reason of s 4.38(4)? 3. Were the impacts of the 66 kV Power Line "off-site impacts" required to be considered under s 4.15(1)(b) of the EP&A Act 1979?

Evidence

1. The evidence in the case was wholly documentary and the facts, as indicated above, were uncontroversial.
2. From the evidence, the parties agreed that it could be reasonably inferred that the IPC proceeded to determine the Project on the basis stated in the Assessment Report (and Bowdens' documents), that the 66kV transmission line would be the subject of separate assessment under Pt 5 of the EP&A Act, and accordingly was not assessed in the determination of the Project.

Was the construction of the 66kV transmission line part of a single proposed development - s 4.38(4) EP&A Act?

1. The first basis upon which it was contended that an assessment of the environmental impact of the 66kV transmission line was a mandatory relevant consideration was by operation of s 4.38(4) of the EP&A Act. It was contended that a proper construction of that section operated to deem the 66kV transmission line as part of the Project, notwithstanding that it did not form part of the development application, as the power supply works were integral and necessary to the undertaking of the Project.
2. The determination of the relevant dispute requires a consideration of the meaning of the statutory phrase "single proposed development" as used in s 4.38(4) of the EP&A Act. Bingman contends that it includes all elements of a proposal that are integral and necessary elements to enable a proposed development to function. Bowdens contends that it is limited to that which is contained in the development application.
3. For the reasons that follow, I find that upon a proper construction of s 4.38 of the EP&A Act the 66kV transmission line was not part of a single proposed development that is State significant development to which the provisions of s 4.38(4) would apply.
4. Section 4.38 of the EP&A Act in its entirety provides: 4.38 Consent for State significant development (1) The consent authority is to determine a development application in respect of State significant development by - (a) granting consent to the application with such modifications of the proposed development or on such conditions as the consent authority may determine, or (b) refusing consent to the application. (2) Development consent may not be granted if the development is wholly prohibited by an environmental planning instrument. (3) Development consent may be granted despite the development being partly prohibited by an environmental planning instrument. (4) If part of a single proposed development that is State significant development requires development consent to be carried out and the other part may be carried out without development consent - (a) Division 5.1 does not apply to that other part of the proposed development, and (b) that other part of the proposed development is taken to be development that may not be carried out except with development consent. (5) A development application in respect of State significant development that is wholly or partly prohibited may be considered in accordance with Division 3.5 in conjunction with a proposed environmental planning instrument to permit the carrying out of the development. The Planning Secretary may (despite anything to the contrary in section 3.32) undertake the functions of the planning proposal authority under Part 3 for a proposed instrument if it is initiated for the purpose of permitting the carrying out of the development (whether or not it contains other provisions). (6) If the determination under section 3.34 (Gateway determination) for a planning proposal declares that the proposed instrument is principally concerned with permitting the carrying out of State significant development that would otherwise be wholly prohibited - (a) the proposed instrument may be made only by the Independent Planning Commission under a delegation from the Minister, and (b) the development application for the carrying out of that development may be determined only by the Independent Planning Commission under a delegation from the Minister.
5. Section 1.4 of the EP&A Act contains the following relevant definitions: development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate. development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate. State significant development has the meaning given by Division 4.7.
6. Section 4.36 defines State significant development as: "development that is declared under this section to be State significant development."
7. As is to be observed, the phrase "single proposed development that is State significant development" is not defined. The determination of the relevant dispute requires ascertaining the meaning of that phrase in order to resolve whether, as a question of fact, the 66kV transmission line is something to which s 4.38(4) of the EP&A Act is directed. Accordingly, its meaning is to be derived from the statutory text, context and purpose, applying the usual principles of statutory construction: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14].
8. Section 4.38 of the EP&A Act, read as a whole, is a provision that is directed to the determination (by consent or refusal) of a development application. Such a context is derived from the following indicia: 1. Section 4.38(1) identifies that which is to be determined as "a development application in respect of State significant development"; 2. Section 4.38(1) then provides that the determination by consent or refusal is of "the application"; 3. The references in s 4.38(2) and (3) to the granting of development consent and "the development" are references to the notion of the determination of the development application and the State significant development referred to in s 4.38(1); 4. Section 4.38(4) again refers to State significant development, however, the circumstance it identifies in terms is a case where the State significant development is in part permitted with development consent and in part permitted without development consent. The identification of the part of the whole in the text is that to which the term "single proposed development that is State significant development"; and 5. Section 4.38(5) and (6) again relates to the development application as the subject matter of the provision.
9. To adopt any other construction would not be a construction that provides internal harmony as to the operation of the section as a whole. A construction of s 4.38(4) of the EP&A Act that is focussed on a subject matter beyond the confines of the development application would render the operation of the power conferred by s 4.38(1) unworkable, as by its terms all that can be determined is the development application and, if s 4.38(4) extended to subject matters beyond that scope, there would be no power in s 4.38(1) to approve those matters.
10. Further support for the construction that s 4.38 of the EP&A Act is limited to the scope of the development application is derived from s 4.40 which provides that s 4.15 applies to the determination of the development application for State significant development. It is noteworthy, again, that the reference in this section is to the development application. Further, s 4.15(1) in its opening phrase provides: (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 - … Again, the statutory context is directed towards the subject matter of the development application.
11. Further, the statutory context provides for the notion that it is for an applicant to decide the nature and scope of a development application and the consent authority to determine that application: see for example s 4.12 of the EP&A Act. The effect of the construction proposed by Bingman would be to require the consent authority to determine for itself whether every relevant integral or necessary part of a proposal has been included in the development application and then determine the impacts of that aspect of the development. It is apparent from the statutory scheme that the need to undertake such an enquiry is not intended to be conferred upon the consent authority. Rather, consistent with the statutory scheme, it is a matter for the applicant for consent to determine the nature and scope of the development for which they seek consent.
12. The statutory scheme does not dictate that every part of a State significant development project must be comprised in a single assessment. Such is made plain by the application of s 4.37 of the EP&A Act which permits concept development applications to be made for State significant development. Such development applications permit for the later determination of the environmental impacts of nominated parts of development proposals.
13. Further, whilst there is an express power to accommodate concept development consents there is no statutory limitation on State significant development that it be comprised in a single development proposal (if not a concept development application) so as to permit holistic assessment of environmental impacts. The statutory framework is neutral on the content of a development application and does anticipate that more than one development application can apply to the carrying out of a proposal. The limitation is dictated by the assessment process, that is, if the development proposed in the development application is insufficient to permit the mandatory environmental assessment to be undertaken, then the development application cannot be approved.
14. Bingman's submission that to focus on the content of the development application is to confuse what the proponent chose to put in its development application and what a consent authority must consider in determining an application for development consent is rejected. The focus on the content of the development application is a focus on what the statutory provisions provide as the necessary consideration in determining a development application, namely the determination of the application for which consent was sought as provided for in ss 4.38(1) and 4.15 of the EP&A Act.
15. In construing a statutory provision consideration should also be given to whether a particular construction is consistent with the purpose of the statutory provision. In this case, there is no stated purpose of s 4.38 generally or s 4.38(4) of the EP&A Act specifically, and therefore such a purpose (if able to be determined) must be inferred. Bingman contended that the statutory purpose of s 4.38(4) was so as to ensure that (subject to s 4.37) all parts of a single proposed development that is State significant development are considered holistically at one time. Such a purpose is not apparent from the legislative regime generally or from s 4.38(4) specifically. The derivation of such a purpose relies upon a circular argument that, if the text is read so as to require the consideration of a proposal to include development not included in the development application, then the purpose is to be taken to be that the consent authority must look beyond the confines of the development application. Having regard to the statutory context as a whole, I find that there is no clear purpose to be inferred from the terms of s 4.38. At best, taking the EP&A Act as a whole into account, the purpose of s 4.38(4) is to facilitate the determination of whether to grant development consent and no more. Accordingly, the construction referred to above is consistent with any purpose to be inferred with respect to s 4.38(4).
16. For those reasons, I find that the 66kV transmission line was not part of a single proposed development that is State significant development, such that it was mandatory that the IPC considered the environmental impacts of such a transmission line or was required to be determined as part of the determination of the development application that was before the IPC. Accordingly, the second question as posed at [18] above does not arise.

Did the 66kV transmission line have offsite environmental impacts that were required to be considered in the determination of the development application - s 4.15 of the EP&A Act?

1. In the alternative, Bingman contended that the impact of the necessary transmission of electricity to the Project was a likely impact of the carrying out of the development the subject of the development application such that it was mandatory to consider those impacts prior to the grant of development consent.
2. Section 4.15 of the EP&A Act identifies the mandatory relevant considerations in the determination of a development application. Relevant to the issues in these proceedings s 4.15(1)(b) provides that: 4.15 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,…
3. In determining whether a particular factor is a likely impact for the purposes of s 4.15(1)(b) of the EP&A Act, it has been held that consideration is to be had to both the direct and indirect impacts, or alternatively, phrased as onsite and offsite impacts: Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638 (Hoxton Park) at [47]; Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221 (Mullaley) at [141]; Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake) at [6].
4. In requiring a matter to be considered in this context, it is not essential that the particular impact be the subject matter of the development application under consideration, however the other development must have a real and sufficient link with the proposed development as what is required by s 4.15(1)(b) of the EP&A Act is a consideration of the likely impacts of "that development", being the "development the subject of the development application": see Palm Lake at [6]-[7].
5. As was observed by Basten JA in Hoxton Park at [44] and [46]: 44 …The impact must be one flowing from the development the subject of the development application: the question is how remote a "likely" impact must be, in order to disqualify it from the scope of the consideration. This requires an evaluative judgment which will often not involve any bright-line boundary…. … 46 … Some such limitation must follow from the concept of "impact": as remoteness from the development increases, impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve the application. Further, the likelihood of a particular impact may diminish with remoteness. "Likely" in this context has the meaning of a "real chance or possibility" rather than more probable than not: Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 279-281; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 193.
6. In this case, whilst it may be accepted that there was a fundamental need to provide electricity to the Project, power being a fundamental necessity to the capacity for the Project to proceed as intended, the question is whether the provision of that infrastructure has an impact that is determined to be a real chance or possibility of occurring as a consequence of the carrying out of the development.
7. In this case, the need for the infrastructure can be accepted as can the general capacity to provide the necessary infrastructure. However, the means by which such infrastructure was to be provided, and thereby the impacts of such provision, have not been identified.
8. The determination of the proposed route of any power line is critical to determining the possible impacts of such development. The lack of certainty of the route at the time of determination of the development application by the IPC rendered the impact of such power line so remote as to be incapable of being relevantly determined as a "likely impact" of the development.
9. Contrary to the Applicant's submissions, the circumstances of this case are comparable to those in Mullaley as identified at [145]-[148]: 145 In the present case, the impacts of any potential gas transmission pipeline are neither on-site nor off-site impacts of the Project that is the subject of the development application. The impacts are not on-site impacts of the Project as the development application did not seek development consent for any gas transmission pipeline or identify the land on which any such pipeline would be constructed. The development application sought consent for the Project on the site, but the description of the Project and the site did not include any gas transmission pipeline. 146 The impacts are not off-site impacts of the Project for three reasons. First, there is no identifiable and certain other development that will cause off-site impacts. It may be accepted that gas produced by the Project would need to be transported to market by a gas transmission pipeline. However, the nature and route of any gas transmission pipeline remained unknown. Two options were being considered: connection to the already approved Queensland-Hunter gas pipeline located to the east of the site or construction of the proposed Western Slopes Pipeline that would connect the Project to the Moomba-Sydney pipeline to the west of the site, which was the subject of a separate application, assessment and approval process. There were uncertainties with both options, including the route of the connecting pipeline for the first and the route of the proposed pipeline for the second. 147 In these circumstances, there was insufficient certainty as to what and where would be the other development to be able to consider the likely impacts of that other development. The likely impacts of the pipeline are location-dependent. Without knowing which pipeline is to be used to transport product gas from the Project, what is to be the route of the pipeline, and what are the natural and built environments along the route of the pipeline, it is not possible to assess the likely impacts of the pipeline on the natural and built environments. 148 Second, even if the likely impacts of an identifiable gas transmission pipeline were able to be identified, such impacts of the pipeline do not have a real and sufficient connection to the Project, so that they could be said to be impacts of the Project. Consider, for example, if the route of the pipeline were to pass through, and likely damage, habitat of a threatened species of plant or animal at a particular location along the route. That would be a likely impact of the pipeline, but its remoteness from the Project is so great as to disqualify it from being an impact of the Project. The carrying out of the Project, including the production of gas, on the site of the Project would not cause the pipeline to be constructed along any particular route that passes through, and damages, the habitat of the threatened species. Of course, the pipeline would transport gas produced by the Project to market, but the mere transportation of gas product does not require the pipeline to follow any particular route connecting the Project with the market. The pipeline could be constructed along a different route that would avoid impacting the habitat of the threatened species. Any impact that the pipeline might have on the habitat of the threatened species, therefore, could not be said to have a real and sufficient link with the carrying out of the Project.
10. The facts of the present case are not sufficiently different as to render Mullaley distinguishable. As with Mullaley, a route was required to provide the necessary infrastructure and it had not been determined. The straight-line distance of the power line could be assessed as being in the order of 13km, however, there was no evidence that the straight-line route was a likely or necessary route for the power line. During submissions the Applicant accepted that factors such as the opinion of landowners to provision of an easement or the location of environmentally sensitive lands would affect the route selected. Absent a determination of a route within the range of possible potential routes between the Project site and the Breakfast Creek connection point, the potential impacts of such construction were not identifiable, and therefore the impact was unable to be determined.
11. The facts in Palm Lake, however, are distinguishable. In Palm Lake, the works in the road reserve were identified with some degree of precision and the Commissioner had determined that those works were both feasible and certain. That is not the circumstances of the present case.
12. The Applicant's submission that it would be open to the IPC to assess all possible impacts across all possible routes is not what is required by the relevant provisions of the EP&A Act. The impact to be considered must be "likely", and that threshold cannot be met unless the route of the infrastructure is determined first. The potential impact of the electricity infrastructure remains speculative absent the identification of the proposed route and is not therefore, a relevant mandatory consideration.
13. For the above reasons, I have found that the impacts of the 66kV transmission line were not likely impacts of the development the subject of the development application and were therefore not a mandatory relevant consideration that was required to be taken into account in the determination of the development application.

Section 25B Land and Environment Court Act 1979 (NSW)

1. Having found that the Decision was validly granted the duty to which s 25B of the Land and Environment Court Act 1979 (NSW) is directed does not arise for consideration.

Costs

1. The parties requested that costs be reserved until after the publication of my reasons as the usual rule as to costs following the event may not apply.
2. I will reserve costs.

Conclusion and orders

1. For the reasons I have out outlined above, Bingman has not succeeded in establishing that the Decision of the IPC was affected by the errors as asserted.
2. The Court orders: 1. The Amended Summons dated 5 August 2023 is dismissed; 2. Costs are reserved; and 3. The exhibits are returned.

Amendments 14 March 2024 - Typographical error in [53] - replaced 'Bowdens' with 'Bingman'. 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: 14 March 2024