Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd

Court of Appeal (NSW)|2024-07-22|Before: White JA, Adamson JA

Background Facts

For the mine to operate, it will require an external electrical power supply. In its May 2020 EIS, the respondent stated: "A range of options for reliable supply of electricity have been identified, each with its own requirements for augmentation or upgrade of facilities in order for reliable supply to be possible. However, preliminary technical enquiries have been sent to both TransGrid and Endeavour Energy have identified the viability of reliable supply. A summary of the seven options considered and the feedback from the relevant energy provider to date is provided in Appendix 9."

Grounds of Review

The grounds of review set out in the appellant's summons for judicial review in the Land and Environment Court were: "Requirement to consider 66 kV electricity transmission line 6. The construction of a 66 kV electricity transmission line for a distance of approximately 11 km was required to power the mine (the Power Line) and was part of the Project. Particulars 1. Bowdens Silver Pty Ltd, Water Supply Amendment Report [March 2022], Appendix 1, pp 2-3, 2-7, 2-15, 2-16, 2-65. 2. NSW Department of Planning and Environment, Assessment Report December 2022, pp 4-5. 7. The Power Line was "part of a single proposed development that is State Significant Development" within the meaning of s 4.38(4) of the EP&A Act. 8. Save for the operation of s 4.38(4) of the EP&A Act, the Power Line was part of the State Significant Development that could be carried out without development consent under Part 4. Particulars The Power Line was either exempt development by reason of State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW), cll 2.46(1)(c) or could be carried out without development by reason of State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW), cll 2.44. 9. By reason of s 4.38(4) of the EP&A Act the Power Line was taken to be part of the State Significant Development and could not be carried out without development consent granted by the Second Defendant. 10. In the premises, when determining the development application for the Project, the Second Defendant: a. was required to take into consideration the matters in s 4.15 of the EP&A Act relevant to the whole of the State Significant Development, including the Power Line; b. was required to consider likely impacts of the Power Line, including environmental impacts on both the natural and built environments, and the social and economic impacts of the Power Line in the locality; c. was required to consider the suitability of the site for the construction of the Power Line; and d. was required to consider submissions made in relation to the Power Line. Error by decision maker 11. In making the Decision, the Second Respondent did not consider the Power Line at all, and failed to consider any of the matters specified in the previous paragraph in respect of the Power Line. Particulars 1. The proponent and the Department wrongly considered, and represented, that the Power Line would be the subject of separate assessment under Part 5 of the EP&A Act. 2. The Reasons do not refer to the Power Line. 12. There is a realistic possibility that had the Second Defendant considered the construction of the Power Line as part of the Project, the Decision may have been different, in that: a. the Second Defendant may have refused to determine the application until the Power Line had been assessed; b. the Second Defendant may have imposed conditions on development consent; and/or c. the Second Defendant may have refused to grant development consent. Particulars 1. The Power Line will run for approximately 11 km, and has potential impacts on biodiversity, Aboriginal heritage, and surrounding landowners including by reason of noise and dust during construction and electromagnetic fields. 2. The public, and in particular landowners along the route of the easement, have been denied the opportunity to be heard and have their submissions considered by the Second Respondent in respect of the proposed construction of the Power Line. 13. By reason of the above, the Decision was affected by jurisdictional error, in that: a. the Second Defendant failed to carry out the task required by law, namely an assessment of the whole of the State Significant Development, including the Power Line; b. further, or in the alternative, the Second Defendant failed to take into account mandatory relevant considerations being the matters identified in paragraph 10 above in respect of the Power Line; c. further, or in the alternative, when the Second Defendant determined to grant consent to the Project, there was a constructive failure by the Second Defendant to exercise jurisdiction having regard to its failure to determine the application having regard to the whole of the State Significant Development."

Ground 1

Ground 1 of the notice of appeal alleges: "1. The primary judge erred: (a) in concluding that the 66kV Power Line was not part of a "single proposed development that is State significant development" within the meaning of s 4.38(4) of the Environmental Planning and Assessment Act 1979 (NSW); and (b) in failing to conclude that by reason of s 4.38(4) the 66kV Power Line and its impacts were a mandatory relevant consideration required to be considered by the second respondent, as consent authority, before granting development consent to the first respondent's development application: Reasons [36]; (c) further, or in the alternative to (b), in failing to conclude that by reason of the operation of s 4.38(4) in relation to the 66kV Power Line the second respondent, as consent authority, proceeded on a wrong basis as to the matters requiring the consent of the second respondent and that the second respondent thereby asked itself the wrong question or constructively failed to exercise jurisdiction." (Emphasis added)
The "single development" for the purposes of s 4.38(4) is the proposed mine for which development approval was sought.
Neither in the Land and Environment Court nor in this Court did the respondent dispute that as a matter of fact the external transmission line was integral to the operation of the mine, or, as the Department put it, a component of the project.
In the May 2020 EIS, it was estimated that of the "capital investment value" of the mine of $246.55 million, $24.4 million would be attributable to the then proposed 132kV power supply line. The indicative construction schedule for the mine included in the respondent's Submissions Report showed the construction of the 66kV power transmission line as an integer before numerous other construction activities were finalised and before commissioning commenced.
Rather, the focus of the respondent's submission and the primary judge's reasons was on the second aspect of the appellant's contention (see [18]): that if a powerline transmission were a part of the single development of the mine, the IPC was required to treat it as included within the development for which approval was sought.
The primary judge found (at [23]) that the 66kV transmission line was not part of a single development to which s 4.38(4) applied. Her Honour said: "28 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. 29 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."
The primary judge considered that the purpose of s 4.38(4) did not go beyond facilitating the determination whether or not development consent should be granted (at [35]).
The primary judge concluded at [36]: "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…"
The primary judge was in error in concluding that the only purpose of s 4.38(4) was to facilitate the determination of whether development should be granted. If that were its only purpose, s 4.38(4) would be otiose. The purpose of s 4.38(4) is to require that the IPC, as the consent authority under Div 4.7 for State significant development, be the consent authority for development that would not otherwise require development consent under Div 4.7, if it is part of a single development that does require such consent.
But I agree that s 4.38(4) does not itself (that is, without regard to s 4.15(1)(b)) require consideration of the off-site environmental effects of a proposed transmission line. That is because there can be more than one development application for a single development (AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 at [229]-[233] (Preston CJ of LEC)).
If the development consent is otherwise valid, the respondent will be required to make a further application to the IPC for its approval for the transmission line.
For the above reasons I would uphold ground 1(a) but not ground 1(b) or (c).
The appellant's success on ground 1(a) does not resolve the appeal. It could have costs consequences if the appeal were otherwise unsuccessful.

Ground 2

Ground 2 of the notice of appeal alleges: "2. The primary judge erred in failing to conclude that the impacts of the 66kV Power Line were likely impacts of the development the subject of the first respondent's development application, and therefore required to be considered by the second respondent as a mandatory relevant consideration: Reasons [49]."
Section 4.15(1) of the EP&A Act has been quoted at [21]. The following features of the provision should be noted. First, it refers to the development "the subject of the development application". That subject was the mine, not an external power transmission line.
Secondly, it refers to "such of the following matters as are of relevance". It may be arguable that if a following matter could not be assessed it was not relevant, or that if the transmission line were to be assessed under Pt 5 and did not require consent under Pt 4, its likely environmental impacts were not relevant.
Thirdly, the considerations to be taken into account are mandatory considerations ("…a consent authority is to take into consideration…").
Fourthly, s 4.15(1)(b) requires the consent authority to take into account "the likely impacts of that development".
Because the transmission line was not the subject of the development application, the likely environmental impacts of the transmission line were not directly caught by s 4.15(1)(b). But because the proposed mine (which was the subject of the development application) will require electrical power to be delivered through an off-site transmission line, the likely impacts of that transmission line were a mandatory consideration for the IPC.
The primary judge took a different view. Her Honour considered that because the route for the power line had not been determined, the potential impacts of its construction could not be determined and therefore did not need to be taken into account as "likely impacts" (at [46]-[48]). Her Honour said: "39 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]. 40 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]. … 43 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. 44 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. … 48 …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. 49 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."
The primary judge was right in saying that, on the materials presented to the IPC, the likely route of the transmission line could not be determined. But that was because the respondent did not provide any information to the IPC as to the likely or possible route or routes of the transmission lines.
In the "submission report" of June 2021, RW Corkery & Co Pty Ltd on behalf of the respondent said that the "precise alignment was not presented as it is still being discussed with landowners, and the details are confidential at this time".
So far as appears from the appeal papers there was nothing that showed that, as at the date of the Department's Assessment Report in December 2022, or the date of development consent on 3 April 2023, the alignment of the line was still being discussed with landowners and was still confidential.
Rather the respondent contended, and the Department and IPC evidently accepted, that the impacts of the transmission line were irrelevant to the development application, because the transmission line was not the subject of the development application and would be subject to a separate application for "approval" under Pt 5.
Hoxton Park concerned a development application for a school. Access to the proposed school would be by a bridge on land owned by the Council that did not require development consent under Pt 4, but would require environmental assessment under Pt 5 (at [3]).
The leading judgment was given by Basten JA. Giles and Macfarlan JJA agreed with his Honour's reasons.
The then relevant provision was s 79C(1)(b) of the EP&A Act which has since been renumbered as s 4.15(1)(b).
In Hoxton Park, except for his finding that the application challenging the grant of development consent was out of time, the primary judge would have allowed the challenge to the grant of development consent for failing to consider the likely environmental aspects of the bridge (at [3]-[4]).
This Court held that the challenge was not time-barred and otherwise upheld the primary judge's conclusion. Basten JA said: "44 The resolution of this issue turns on the scope of the phrase 'the likely impacts of that development' in s 79C(1)(b). 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 Once it is accepted that the primary judge was entitled to consider for himself whether the bridge was 'likely' to be constructed as a consequence of approving the development application, and once the challenge to that decision is rejected, the respondents must show some implied restriction on the remoteness of the chain of likely consequences. 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. … 49 In the present case, the respondents' argument focused on the fact that the construction of the bridge was not merely excluded from the development application before the Council, but would itself be the subject of separate environmental assessment under Pt 5 of the EP&A Act. They sought to distinguish cases where there was 'overlap' between two assessments, because more than one approval was required for the same activity. … 53 …Once it is found that a particular activity is a likely impact of the development for which approval is sought, the impacts flowing from that activity can only be excluded from consideration in respect of the development application if one reads into the language of s 79C(1)(b) an exclusion of environmental impacts which have been or are likely to be considered in relation to a separate development application required for that activity. … 55 One consequence of the proposed construction would be that where, as in the present case, two inter-related developments were each likely to have an impact on a particular aspect of the environment, the cumulative impact of the two developments would escape assessment. Although the cumulative impact of sequential, but unrelated, developments may not be a mandatory consideration, that does not provide a basis for imposing an implied limitation on the language of s 79C. To do so would not be consistent with the objects set out in s 5 of the EP&A Act. 56 First, it is not necessary to imply the proposed limitation into the text of s 79C in order to give effect to the purpose of the EP&A Act; indeed, such an implication may be contrary to the stated objects of the Act. Secondly, it is by no means clear that such an implication would, in the words of Spigelman CJ in Young, be a 'text based' exercise. Thirdly, and consequently, it is not possible to say with certainty that the legislature would have adopted this approach if its attention had been drawn to the present situation. Accordingly, the respondents' contention must be rejected. The conclusion reached by the primary judge was correct."
The appellant accepts that in Hoxton Park the route of the proposed road being assessed under Pt 5 was known (Hoxton Park Residents Action Group Inc v Liverpool Council (No. 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 ("Hoxton Park No. 3") at [3]).
The respondent relied on Mullaley. That case concerned an application by Santos to develop a new coal seam gas field and associated infrastructure at Narrabri. The development was State significant development. One of the grounds of challenge to the IPC's grant of development consent was that the IPC had not considered the likely impacts of a pipeline that would be required to carry the gas to market.
Preston CJ of LEC accepted that the likely impacts of the development the subject of the development application include direct and indirect off-site impacts of the proposed development (at [140]).
His Honour rejected the challenge on three grounds. The first two are relevant. The first ground was that there was no "identifiable and certain other development that will cause off-site impacts" (at [146]). This was because the nature and route of a pipeline was unknown. There were options to connect to either of two existing pipelines. The route of either connection was unknown (at [146]).
His Honour said at [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."
The second ground was that "…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" (at [148]). His Honour explained this by hypothesising that if the pipeline passed through the habitat of an endangered species at a particular location on its route, the impact on that habitat would be the result of the choice for the route for the pipeline, not the result of construction of the Project (at [148]).
In Mullaley, no likely route of the pipeline had been identified when development consent for the first stage of the project was given, even in approximate terms. Santos had not decided to which existing pipeline the pipeline from the Narrabri field would be joined.
In contrast, in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41, Preston CJ of LEC upheld an appeal from a Commissioner who granted deferred commencement consent to an expansion of a seniors housing development. The Commissioner failed to consider the likely impacts of necessary road, civil and infrastructure works in a road reserve that would be required to provide safe and efficient traffic movement to the development. Preston CJ of LEC held that the Commissioner misdirected herself by believing that imposing a deferred condition of consent (that there be an environment assessment and later approval of the works proposed in the road reserve) justified her not considering the likely impacts of such works in determining to grant development consent (at [36]). The Commissioner found that the works were feasible and certain and would be constructed within the road reserve (at [33]). Those works had a "real and sufficient link" to and were "inextricably involved" with the proposed development (at [6]).
Assuming that whether the likely impacts of the future power transmission line can be assessed is a matter for determination by the Court, the respondent submitted that the question was one of fact and degree. It submitted that the primary judge was entitled to conclude that the case was analogous to Mullaley rather than to Hoxton Park or Palm Lake.
I do not agree.
The material provided by the respondent to the IPC did not support the primary judge's finding that the threshold for finding that an impact was "likely" was not met until the route of the transmission line had been determined. There was no evidence that as at the date of development consent the route had not been determined. The respondent did not provide an update of its June 2021 report that "…the final alignment of this powerline [viz from Breakfast Creek] remains subject to agreement with landholders".
This statement in June 2021 fell short of saying that the likely route of the powerline had not been determined. No further information was provided later.
As explained further below in relation to ground 3, neither the Department nor the IPC addressed the question whether the likely impacts of the transmission line could be determined. No doubt this was because they accepted the respondent's contention that such impacts would be considered later when "approval" for the transmission line was sought from Endeavour Energy. Their failure to address s 4.38(4) led to their failure to address 4.15(1)(b) in relation to the likely impacts of the powerline.
I should not be taken as necessarily accepting the assumption in the primary judge's reasons that if the likely off-site impacts of the development the subject of the development application could not be determined, they can be ignored. The appellant challenged the correctness of Mullaley. In the view I take, it is unnecessary to resolve that challenge.
If it were necessary to decide ground 2, ground 2 should be upheld.

Ground 3

Ground 3 of the amended notice of appeal alleges: "In the alternative to Ground 2, if the determination of whether the impacts of the 66kV Power Line were likely impacts of the development was not a question for the primary judge, the primary judge erred in failing to conclude that the second respondent committed a jurisdictional error by failing to consider whether the impacts of the 66kV Power Line were likely impacts of the development."
It was common ground at trial that it was for the Land and Environment Court to determine whether an impact was a "likely impact" of the development the subject of the development application (ie the mine).
Neither party drew the primary judge's attention to this Court's decision in Ross v Lane [2022] NSWCA 235; (2022) 255 LGERA 136. There Basten AJA, with whose reasons Macfarlan JA agreed, said that the likely impacts of the development the subject of the development application were evaluative matters for the consent authority to address subject to statutory forms of review or appeal (at [94]-[100]) (Basten JA's analysis was accepted as correct by this Court in El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78; (2023) 256 LGERA 24 at [53]).
The appellant submitted that assessment of the likely impacts of the development were an objective matter that was appropriately the subject of determination by the Court. As a matter of precedent, as the observations of Basten AJA (with which Macfarlan JA agreed) in Ross v Lane were approved by this Court in El Khouri v Gemaveld, they should be followed in this Court. I do not accept the appellant's submission that to do so impermissibly requires the reading of words into s 4.15(1)(b) as if that provision provided that the consent authority: "…is to take into consideration such of the following matters as are of relevance… … (b) what the consent authority considers are the likely impacts of that development…"
To the contrary, the fact that the chapeau to s 4.15(1) refers to the consent authority's consideration of the matters in that sub-section provides textual support for Basten AJA's analysis.
The respondent submitted that, although the IPC made no mention of the external transmission line in its Statement of Reasons, it should be inferred from its public notice of its determination that it took into account the matters in the Department's Assessment Report (at [46] above). It submitted that: "56. The IPC took into account that (a) the power line would be located entirely outside the mine site area; (b) the land over which the power line might pass had not been selected; (c) Bowdens was negotiating with landowners; (d) Bowdens was still investigating the options; and (e) Bowdens' development application did not include an application for consent in relation to the power line: see [9] - [14] above. 57. The IPC turned its mind to the question whether the impacts of the power line were likely impacts of the mine. It was open to the IPC to answer that question by concluding that the impacts of the power line were not likely impacts of the mine, because the land over which the power line might pass had not been selected and Bowdens was still investigating the options. The impacts were not identifiable. They were sufficiently remote from the development that they had no practical significance in terms of approving or refusing to approve the application: Hoxton Park, [46]."
The difficulty with this submission is that neither the IPC nor the Department did any such thing. Paragraphs [9]-[14] of the respondent's submissions referred to in para [56] quoted above, go no further than the matters referred to at [29]-[31] and [36]-[42] above.
Indeed, in its response to the appellant's summons for judicial review the respondent admitted "…that the Power Line was not the subject of consideration by the Second Respondent [the IPC] in making its decision on 3 April 2023".
The respondent submitted that this admission was made in error. I do not agree. The admission was plainly correct.
For the above reasons, ground 3 should be upheld.

Respondent's Contention

Although the respondent did not file a notice of contention, it submitted in the Court below, without objection, that if the IPC's decision were affected by material jurisdictional error, the Court should make one of the following orders: "i) Until further order, the operation of the whole of the consent to development application number SSD 5765 granted on 3 April 2023 (Consent) is suspended. ii) Compliance with the following terms will validate the Consent: (a) That the consent authority consider the impacts of the Power Line. (b) That the consent authority consider whether the development the subject of development application number SSD 5765 should be approved, or regranted with alterations, having regard to any impacts of the Power Line. (c) If the answer is affirmative, that the consent authority make an application under s 25C(1) or s 25C(2) of the LEC Act for orders in accordance with those provisions." or, as it submitted in this Court: "(i) Until further order, the operation of the whole of the consent to development application number SSD 5765 granted on 3 April 2023 (Consent) is suspended. (ii) Compliance with the following terms will validate the Consent: (a) That the consent authority consider whether the impacts of the 66kV transmission line are likely impacts of the development the subject of development application number SSD 5765. (b) If the answer is negative, that the consent authority make an application under s 25C(1) of the Act for orders in accordance with that provision."
Sections 25B and 25C of the LEC Act provide: "25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order - (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation) - (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act. 25C Orders for validity of development consents (1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order - (a) declaring that the terms have been substantially complied with, and (b) declaring that the consent is valid, and (c) revoking the order of suspension. (2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 4.61 of the Environmental Planning and Assessment Act 1979, the Court may make an order - (a) declaring that the terms have been complied with, and (b) declaring that the development consent has been validly regranted, and (c) declaring that the suspended development consent has been revoked, and (d) revoking the order of suspension."
For the reasons above, I would uphold ground 2 on the basis that the evidence did not establish that it was not possible to identify the likely impacts of the proposed transmission line and would uphold ground 3 on the basis that the IPC failed to consider the likely impacts of the proposed transmission line.
In Hoxton Park No. 3, Biscoe J declined to make an order under s 25B. His Honour observed at [51]: "I do not consider a s 25B order to be an appropriate course in this case mainly for the reason often given in s 79C EPA Act cases referred to at [40] above. It is difficult to see a large difference between the consequences of making a s 25B order in a s 79C EPA Act case, on the one hand, and, on the other, declaring a consent to be invalid resulting in the submission and consideration of a new development application which may be substantially similar to that which has been invalidated. The former scenario would require a general opening up of the decision-making process, and a weighing and balancing of the consideration of the effect of the bridgework on the EEC against all other relevant matters, which may or may not lead to confirmation of the original decision. The latter would entail a similar process of weighing and balancing which may or may not lead to consent. In the case of technical breaches, the difference is more readily comprehensible. Taking this into account, and the complexities associated with the making of a s 25B order in a s 79C EPA Act case, it is more appropriate that the Council in this case consider all the relevant material afresh."
Biscoe J identified the complexities of proceeding under s 25B and 25C at [40]-[46].
In this case, there has not been a "technical breach" of s 4.15(1) (see Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 at [21], where Hodgson JA said in relation to s 25B that "The general intention was that technical breaches should be capable of being rectified").
As Biscoe J observed (at [37]), this reflected the legislative aim expressed in the Minister's Second Reading Speech of s 25B (NSW Legislative Assembly, Parliamentary Debates (Hansard), 28 May 1997 at 9459-9460).
The respondent rightly says that there is nothing in the text of s 25B or 25C that confines its application to technical breaches. Nonetheless, where there has been a failure by the consent authority to take into account a mandatory consideration under s 4.15(1), it is difficult to see how the Court could be satisfied that compliance with specified terms "will validate the consent" (as distinct from "may validate the consent") unless the breach is of a technical nature.
In this case, were the orders sought by the respondent under s 25B of the LEC Act made, it is difficult to see how, without a reopening of submissions on the development application, it could be said that the terms proposed by the respondent, if complied with, "will" validate the consent. For the reasons in relation to ground 2, the materials before the consent authority (and the primary judge) did not establish that, as at the date of the IPC's consideration of the development application, no alignment of the route of the transmission line had been determined, or that no likely route of the transmission line had been determined. It is inconceivable that the construction and operation of a 13km power transmission line would not have some environmental impact, or some social or economic impact in the locality of the line (whether positive or negative). The cumulative effect of such impact with the impact of the development of the mine itself should be determined (Hoxton Park at [55]).
True it is that declaring the development consent to be void will reopen the development application for further consideration which will require balancing the consideration of such impacts against other relevant considerations. But that is not a reason for declining to make a declaration of invalidity of the consent. To the contrary, it is consistent with the objects of the EP&A Act and the purpose of s 4.15(1). It is also the consequence of the respondent's decision to proceed on the basis that consent to the transmission line would not be required from the IPC but would be subject to separate approval under Pt 5 and thus to withdraw from the IPC's consideration the likely impacts of the transmission line.
I do not accept the respondent's submission that orders should be made as proposed by the respondent under s 25B of the LEC Act.
For these reasons the appeal should be allowed. I propose the following orders: 1. Appeal allowed. 2. Set aside the orders made by Land and Environment Court on 14 March 2024 and in lieu thereof: 1. declare that the development consent granted by the Second Defendant to the First Defendant on 3 April 2023 in respect of the Bowdens Silver Project is void and of no effect. 2. order that the First Defendant by itself, its servants and agents, be restrained from carrying out any work in reliance on the development consent granted by the Second Defendant to the First Defendant on 3 April 2023. 3. the First Defendant pay the Plaintiff's costs of the proceeding. 1. The First Respondent pay the Appellant's costs of the appeal.
ADAMSON JA: I agree with White JA.
PRICE AJA: I have had the advantage of reading in draft the judgment of White JA with whom Adamson JA agrees. I find myself in respectful disagreement with the orders White JA proposes. As I am in the minority, my judgment will be brief. I am grateful for his Honour's recitation of the relevant facts and legislation and I will not repeat them.
I agree that s 4.38 of the EP&A Act applies so that development consent for the transmission line must be obtained from the IPC under Pt 4. However, I agree with the respondent's contention that even if IPC's consent to the transmission line is required, that consent can be obtained later.
There is nothing to suggest in the terms of s 4.38(4) that the consent authority is required to grant consent to all parts of a State significant development at one time. It is well established that there can be more than one development application for a single development. As Preston CJ at LEC observed in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 at [233]: There is nothing to prevent a person having two development consents to carry out development on the same land: Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61 at 70; Auburn Municipal Council v Szabo at 433; Waverley Council v CM Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 at [30]. A development application can be made, and development consent can be granted, to erect or use a distinct part of a building or land that is already the subject of another development consent: Waverley Council v Hairis Architects at [32]. The two development consents applying to development on the same land need to be read together to ascertain the development that is authorised to be carried out on the land: Pilkington v Secretary of State for the Environment (1973) 26 P & CR 508 at 512-513; [1974] 1 All ER 283 at 287.
Section 4.38(4) does not require either expressly or implicitly that all parts of a State significant development requiring consent be included in one development application. State significant development applications will inevitably involve a major project of some complexity. It makes little sense to restrict State significant development applications to a single application whereas two applications may be made for less significant development applications. To do so would not promote the objects of the EP&A Act which include "the orderly and economic use and development of land": s 1.3(c).
Section 4.38(1)(a) enables conditional consent to be granted where more than one application is made so that various parts of the State significant development are considered at different times; the broad powers of the IPC include the imposition of conditions of a kind provided in s 4.17 of the EP&A Act.
In the present case, when the development application was made, the precise alignment of the 66kV transmission line was not settled. True it is the understanding of the Department and the IPC that the environmental impacts of the transmission line would be addressed when approval was sought under Pt 5 was misguided but that does not mean, in my opinion, that the respondent (now that guidance has been provided) may not apply to the IPC for development consent for the powerline when the precise alignment is settled.
As the primary judge observed at [44], "the determination of the proposed route of any power line is critical to determining the possible impacts of such development".
Whilst I agree with White JA's observations at [92]-[93] that there was no evidence that "as at the date of development consent the route had not been determined", the respondent conducted its case before the primary judge and in this Court on the basis that the alignment of the 66kV powerline has not been fully settled. I do not understand the appellants to submit otherwise.
In my opinion, once the alignment of the powerline is settled, the respondent may apply to the IPC for development consent for the powerline. When considering that application, the IPC's powers include the surrender or modification of the earlier consent.
As the respondent may make a further application to the IPC, I do not consider that the development consent granted on 3 April 2023 should be declared to be "void and of no effect".
The jurisdictional error of the IPC is confined, in my opinion, to the misunderstanding that the transmission line was not part of a single proposed development that is a State significant development which required the IPC's consent under s 4.38.
The orders that the respondent seeks, if the IPC's decision was affected by material jurisdictional error, are provided in White JA's judgment at [107]. His Honour further sets out ss 25B and 25C of the Land and Environment Court Act 1979 (NSW) ("the Act") at [108].
It is apposite to note that by s 25A(1) of the Act, Division 3 applies to a development consent granted by the IPC. Section 25A(2) provides: This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body.
As White JA recounts at [112], Hodgson JA said at [21] in Kindimindi Investments Pty Limited v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 in relation to s 25B that "the general intention was that technical breaches should be capable of being rectified". However, Hodgson JA said at [19] and [20]: However, in my view the use of the word "extends" in subs (2) is a strong indication that the subsection was not intended to be an exhaustive indication of the type or types of invalidity to which the Division applies. If the subsection had used the word "applies", or "applies only", then that may have been the intention disclosed. There are other indications, in my opinion, of a legislative intention that the Division should not be limited to the particular kind of invalidity specified in subs (2).
The respondent correctly contends that there is nothing in ss 25B or 25C that confines their application to technical breaches. In my view, there is no good reason why s 25B should not apply to the present case which arose out of the misapprehension of all involved in the development application.
Accordingly, the orders I would propose are as follows: 1. Until further order, the operation of the whole of the consent to development application number SSD 5765 granted on 3 April 2023 (Consent) is suspended. 2. Compliance with the following terms will validate the Consent: 1. That the consent authority consider the impacts of the Power Line. 2. That the consent authority consider whether the development the subject of development application number SSD 5765 should be approved, or regranted with alterations, having regard to any impacts of the Power Line. 3. If the answer is affirmative, that the consent authority make an application under s 25C(1) or s 25C(2) of the LEC Act for orders in accordance with those provisions.

Amendments 16 August 2024 - Correction of misspelt name on coversheet: McGuinness corrected to McGinness 19 August 2024 - Correction to headnote 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: 19 August 2024

Solicitors: Chalk & Behrendt Lawyers & Consultants (Appellant) McCullough Robertson Lawyers (First Respondent) NSW Department of Planning, Housing and Infrastructure (Submitting appearance) (Second Respondent) File Number(s): 2024/134222 Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 4 Citation: [2024] NSWLEC 17 Date of Decision: 14 March 2024 Before: Duggan J File Number(s): 2023/204367

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant in these proceedings, Bingman Catchment Landcare Group Incorporated ("BCLG"), challenged the decision of Duggan J in the Land and Environment Court dismissing an application for judicial review of a decision of the Independent Planning Commission ("IPC") granting development consent to the first respondent, Bowdens Silver Pty Ltd ("Bowdens"), for an open cut silver, lead, and zinc mine. The development for which approval was sought would be State significant development for the purposes of Div 4.7 of the Environmental Planning and Assessment Act 1979 (NSW) ("the EP&A Act"). On 14 May 2020, the first respondent lodged the development application with the IPC, the consent authority for State significant development, alongside an Environmental Impact Statement ("EIS"). This EIS stated that whilst an external electrical power supply was required for the mine, then contemplating a 132kV transmission line but later proposing a 66kV alternative, the transmission line was not part of the consent sought and would be subject to a separate application under Pt 5 of the EP&A Act. According to Bowdens, this was because the precise alignment of the transmission line was still under discussion with landowners and details were confidential. In December 2022, the NSW Department of Planning and Environment ("the Department") provided its State Significant Development Assessment Report to the IPC which posited a view that the transmission line would be subject to a separate application, which it later reiterated in a letter of 13 February 2023. The IPC proceeded to determine the application on the basis that the power line would be the subject of a later assessment, and accordingly did not consider the transmission line, and specifically the environmental impacts thereof, as part of its determination. On 3 April 2023, the IPC granted consent to Bowdens, and in its statement of reasons made no reference to the transmission line. BCLG's challenge in the Land and Environment Court to the decision of the IPC was made on this basis. At first instance, Duggan J held that the transmission line was not a part of a "single development" in the sense contemplated by s 4.38(4) of the EP&A Act, and therefore the environmental impact of the transmission line was not a mandatory consideration for the IPC in making its determination, nor was the IPC required to make a determination on the transmission line itself as part of the application made by Bowdens. Her Honour also found that because the route for the transmission line had not yet been determined, the potential impacts of its construction could not be determined and therefore did not need to be taken into consideration as "likely impacts" of the development. Her Honour therefore dismissed BCLG's application for judicial review. BCLG appealed that decision to this Court under s 58 of the Land and Environment Court Act 1979 (NSW) ("the LEC Act"). The question on appeal was whether the IPC's failure to consider the environmental impacts of the transmission line meant that it had fallen into jurisdictional error. This raised three grounds of appeal: (i) Whether the primary judge erred in concluding that the 66kV transmission line was not part of a "single proposed development that is State significant development" within the meaning of s 4.38(4) of the EP&A Act, and therefore its impacts were either mandatory considerations which were not considered by the second respondent or alternatively meant that the second respondent asked itself the wrong question or constructively failed to exercise jurisdiction; (ii) Whether the primary judge erred in failing to conclude that the impact of the 66kV transmission line was a likely impact of the development the subject of the respondent's development application, and were therefore required to be considered as a mandatory relevant consideration by the second respondent; and (iii) In the alternative to (ii), if the determination of whether the impacts of the transmission line were likely impacts was not a question for the primary judge, whether the primary judge erred in failing to conclude that the second respondent committed a jurisdictional error in failing to consider if the impacts of the transmission line were likely impacts of the proposed development. Although the first respondent did not file a notice of contention, it submitted, without objection, that: (iv) If the application were successful, the Court should make orders which whilst suspending the consent would allow for validation upon compliance with specific terms. The Court (White JA, Adamson JA agreeing, and Price AJA dissenting in part) allowed the appeal, holding: As to issue (i): Per White JA, Adamson JA agreeing at [119]: The "single development" for the purposes of s 4.38(4) is the proposed mine for which development approval was sought and of which the transmission line was a component: [17], [54], [55]. The first respondent, the Department, and the IPC were misguided in believing that a further application could, or would need to, be made a determining authority under Pt 5 of the EP&A Act as opposed to s 4.38(4), the transmission line being a part of a single State significant development: [32]-[34], [47]-[49]. Per White JA, Adamson JA agreeing at [119], Price AJA agreeing at [121]-[123]: Section 4.38(4) does not by itself require that the environmental effects of the transmission line be taken into consideration in determining the specific application, as more than one application can be made for a single State significant development and the transmission line could be subject to a later application to the IPC if the consent were otherwise valid: [18], [61]-[63]. AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112, considered. Per White JA, Adamson JA agreeing at [119]: The IPC was not required to treat the unidentified transmission line as a subject of the development application and directly assess its environmental impacts in determining the development application by virtue of s 4.38(4) alone: [20]. Per Price AJA, dissenting: Even though the IPC and Department were misguided in believing the subsequent application would be made under Pt 5, this does not preclude the first respondent from making its application regarding the transmission line at a later date. As a later application can be made, the consent should not be declared to be "void and of no effect", but rather should merely be suspended. This approach would promote the orderly and economic use of the land: [121], [129], [135]. As to issue (ii): Per White JA, Adamson JA agreeing at [119]: As the proposed mine will require electrical power, the likely impacts of the transmission line providing the power were a mandatory consideration for the IPC in considering the likely effects of the mine itself, pursuant to s 4.15(1)(b) of the EP&A Act. This could not be excluded by the first respondent not including information as to the likely routes of the transmission line: [24], [71]. Even though the materials presented to the IPC did not allow for the determination of the likely route of the transmission line, this was because the first respondent did not provide any information on the matter. There was nothing to show that at the time of the development consent that the alignment remained undetermined. The failure to address s 4.38(4) led the IPC impermissibly to fail to address s 4.15(1)(b) in relation to the likely impacts of the powerline: [73], [75], [92]. Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349; Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41, applied. Mullaley Gas and Pipeline Accord v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110; (2021) 252 LGERA, distinguished. Per Price AJA, dissenting: Whilst there was no evidence that the route of the transmission line had not been determined at the time of consent being granted, the respondent conducted its case on the basis that it had not been settled and the appellant did not submit otherwise: [127]. As to issue (iii): Per White JA, Adamson JA agreeing at [119]: Whilst it was common ground at first instance that it was for the Land and Environment Court to determine whether an impact was a likely impact of the development, neither party drew the primary judge's attention to decisions of this Court which held that the likely impacts are evaluative matters for the consent authority to address. As a matter of precedent, these decisions should be followed: [99], [100]. Ross v Lane [2022] NSWCA 235; (2022) 255 LGERA 136; El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78; (2023) 256 LGERA 24, applied. The IPC made no mention of the transmission line in its Statement of Reasons. It should be inferred that it did not take the transmission line into account in its determination: [102]-[105]. As to issue (iv): Per White JA, Adamson JA agreeing at [119]: It would be difficult in making orders as sought by the first respondent under ss 25B or 25C of the LEC Act, particularly where the breach is not of a "technical nature", without requiring a re-opening of submissions on the application, it being difficult to ascertain if the terms proposed would validate the consent: [114], [115]. Per Price AJA, dissenting: There is nothing in ss 25B or 25C that confines their application to technical breaches, and there is no good reason why s 25B should not apply to the present case arising out the misapprehension of all involved: [134].

(2021) 105 NSWLR 152

(2012) 190 LGERA 119

(2007) 150 LGERA 333

(2021) 252 LGERA 221

(2022) 255 LGERA 136

(2002) 123 LGERA 100

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