Botany Bay City Council v Minister For Planning and Infrastructure

Claim 3: proposed amendments re ss 75I(2)(g) and 75J(2)(a) 16The proposed amendments to Claim 3 centre upon s 75I(2)(g) and 75J(2)(a) of the EPA Act, which provided: 75I Director-General's environmental assessment report (1) The Director-General is to give a report on a project to the Minister for the purposes of the Minister's consideration of the application for approval to carry out the project. (2) The Director-General's report is to include: ... (g) a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project. 75J Giving of approval by Minister to carry out project (1) If: (a) the proponent makes an application for the approval of the Minister under this Part to carry out a project, and (b) the Director-General has given his or her report on the project to the Minister, the Minister may approve or disapprove of the carrying out of the project. (2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider: (a) the Director-General's report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and ... 17Claim 3 currently comprises paragraphs 22-25 of the Points of Claim, as follows: 22. The Director-General requirements issued on 5 April 2011 pursuant to s.75F of the Act provided that the Environmental Assessment must address the following key issues: 13. Drainage and Groundwater The EA shall address drainage/flooding issues associated with the development/site, including: stormwater, drainage infrastructure (Infrastructure Management Plan) and incorporation of Water Sensitive Urban Design measures (Integrated Water Management Plan). The EA is to identify groundwater issues arid potential degradation to the groundwater source and shall address any impacts upon groundwater resources, and when impacts are identified, provide contingency measures to remediate, reduce or manage potential impacts. 23. As a consequence, the First Respondent, in considering under s.75J of the Act, whether to approve or disapprove the carrying out of the project was required to consider the matters in key issue 13 or alternatively it would be manifestly unreasonable not to consider these matters. 24. In breach of his duty to do so, the First Respondent failed to consider or adequately considers the matters referred to in key issue 13. Particulars The Applicant relies on the following: (i) The Applicant's submission dated 28 September 2012 to the NSW Department of Planning & Infrastructure ( the Department) stated, at page 35, that in the circumstances an overland flow path analysis based upon 1: 1 00 ARI design storm events (pre- and post-development) should be prepared and submitted; (ii) The letter from the Applicant to the Department dated 17 August 2012, drew attention at pages 9 and 10 to the fact that the Environmental Assessment was inadequate because, inter alia, of the inadequate assessment of the matters in key issue 13 of the Director-General's requirements and the absence of an overland flow path analysis; (iii) The Department's letter to the proponent dated 24 October 2012 notified the proponent that it required additional information concerning stormwater including an overland flow path analysis; (iv) The Applicant's letter to the Department dated 9 May 2013 at page 39 again drew attention to the inadequacy of the assessment of drainage and stormwater and the inadequacy of the assessment of the matters in key issue 13 and the absence of an overland flow path analysis; (v) Having regard to the topography of the land, the scale and design of the development and that it contained a below-ground car park and proposed the extinguishment of the easements, normal practice in assessing the drainage, flooding and stormwater impacts of the development would require such an overland flow path analysis; (vi) No such overland flow path analysis was provided to or considered by the First Respondent or the Director-General; (vii) In the absence of such an overland flow path analysis no adequate assessment of the drainage, flooding and stormwater impacts of the development could be made; (viii) The Director-General in his Environmental Assessment Report accepted what was contained in the letter from the proponent dated 8 May 2013 in response to the Applicant's submission referred to in (a) without sending the report to the Applicant or giving it any opportunity to respond to the assertions in that letter. 25. By reason thereof, the First Respondent's approval of the Approved Project is void and of no effect. 18The proposed new paragraphs 24A, 24B and 24C, in respect of which leave to amend is sought, are in the following terms: 24A. The report of the Director-General given to the First Respondent in June 2013 was invalid and of no effect because: (a) the report was to include a statement relating to compliance with the environmental assessment requirements under Div 2 of the former Pt 3A of the Act; (b) the report included a statement that the [Director-General was satisfied that the] project complied with those environmental assessment requirements; (c) the Director-General was not properly satisfied that the project complied with those environmental assessment requirements; Particulars The Applicant repeats the particulars to paragraph 24. (d) it was a condition of the validity of the report that the Director-General be properly satisfied as to the accuracy of the statement relating to compliance with environmental assessment requirements; and (e) in the premises, the report was not valid. 24B. Alternatively, the statement relating to compliance with the environmental assessment requirements under Div 2 of the former Pt 3A of the Act was invalid and of no effect because: (a) the Director-General was not properly satisfied that the project complied with the environmental assessment requirements; and Particulars The Applicant repeats the particulars to paragraph 24. (b) it was a condition of the validity of the statement relating to compliance with environmental assessment requirements that the Director-General be properly satisfied as to the accuracy of the statement relating to compliance with environmental assessment requirements; and (c) in the premises, the statement was invalid. 24C. The First Respondent. when deciding whether or not to approve the carrying out of the project: (a) did not consider a "Director-General's report" within the meaning of s 75J(2)(a) of the Act because any such report was invalid and of no effect in circumstances where it was essential to the validity of his decision to approve the project that he consider such a report; Particulars The Applicant repeats paragraph 24A. (b) did not consider a "statement relating to compliance with environmental assessment requirements" within the meaning of s 75J(2)(a) of the Act because any such statement was invalid and of no effect in circumstances where it was essential to the validity of his decision to approve the project that he consider such a statement; Particulars The Applicant repeats paragraph 24B. (c) had regard to a report of the Director-General and a statement relating to compliance with environmental assessment requirements which were invalid and of no effect and, in doing so, had regard to considerations which he was not permitted to have regard to in making the decision to approve the carrying out of the project. 19In the proposed new paragraph 24A(b), quoted above, I have put in square brackets the words "Director-General was satisfied that the" because although they are not in the written form of proposed Amended Points of Claim put before me, during oral argument the applicant indicated that it wished to insert those words as more accurately describing the statement in the Director-General's report. 20The Claim 3 proposed amendments comprising new paragraphs 24A, 24B and 24C rely exclusively on the factual allegations made in paragraphs 22 and 24 of the Points of Claim. They reflect new legal characterisations of the grounds arising from those facts. Their upshot is that, because the Director-General's environmental assessment requirements (EARS) to which s 75I(2)(g) refers, required the parties to address drainage, flooding and stormwater issues (as alleged in paragraph 22) but the Director-General did not receive any adequate drainage, flooding or stormwater analysis (as alleged in paragraph 24), the Director-General was not "properly" satisfied that the project complied with the EARS as required by s 75I(2)(g). The applicant's case as initially argued was that under s 75I(2)(g) if the Director-General's report included a statement that the Director-General was satisfied that there was compliance with the environmental assessment requirements, then there was an obligation on the Director-General to be "properly" satisfied; that in fact the Director-General was not "properly" satisfied; therefore the Director-General's report or the statement was invalid; and consequently the Minister's approach was invalid because he did not consider a Director-General's report as required by s 75J(2)(a). 21To my mind, this concept of being "properly" satisfied raises the possibility of impermissible merits review of an administrative decision. 22The Other Respondents submitted that the proposed new paragraphs plead matters contrary to the decisions of this Court in Drake-Brockman v Minister for Planning [2007] NSWLEC 490, (2007) 158 LGERA 349 per Jagot J, and Hunter Community Environment Centre Inc v Minister for Planning [2012] NSWLEC 195 per Pain J. The applicant submitted that they are distinguishable or should not be followed. 23In Drake-Brockman Jagot J held that s 75O(2)(g) does not impose an obligation on the Director-General to form an opinion about the mater nominated in that subsection and does not require the report to include a certification of compliance or non-compliance. Rather, what is required is a statement "relating to" the nominated matter: at [95], [100]. Drake-Brockman was followed in Hunter at [40]-[42]. 24The applicant submitted that Drake-Brockman and Hunter are distinguishable on the basis that they were concerned with whether the Director-General was obliged to say he was satisfied as to compliance with the EARS, not with the accuracy or otherwise of the Director-General's statement of satisfaction that they had been complied with. 25There are difficulties with the submission but it is unnecessary to consider them because after I had reserved judgment overnight, the hearing was resumed on the Minister's application so that the Minister could bring to the Court's attention cl 3D of the transitional arrangements for the repeal of Part 3A in Schedule 6A to the EPA Act. Clause 3D relevantly provides: 3D Modification of environmental assessment provisions-sections 75H and 75I For the purposes of the application of Part 3A to a transitional Part 3A project: ... (b) section 75I (2) (g) does not apply to or in respect of a transitional Part 3A project, and (c) the Minister is not required to consider a statement relating to compliance with environmental assessment requirements for the purposes of section 75J (2) (a) or 75O (2) (a). ... 26The Minister submits, with the support of the Other Respondents, that subclauses (b) and (c) of cl 3D are fatal to the proposed new paragraphs 24A, 24B and 24C. 27The applicant conceded that cl 3D precludes the applicant's reliance on ss 75I(2)(g) and 75J(2)(a), and that it appears to be fatal to its proposed new paragraphs 24A(a) and 24C(b). Accordingly, the applicant ceased to press for leave to amend in the terms of paragraphs 24A(a) and 24C(b). However, it pressed for leave to amend in terms of the residue of paragraphs 24A, 24B and 24C on the alternative basis that if the Director-General had power to make the statement that he was satisfied that the project complied with the EARS, then there was an implied limitation on the power that he be "properly" satisfied. The applicant was unable to immediately formulate with any more particularity the basis for that implied limitation but submitted that it wished to have the opportunity to do so in refined submissions to the trial judge. 28In my view, cl 3D appears to be dispositive of the entirety of the proposed new paragraphs 24A, 24B and 24C in the absence of any articulated new basis for propounding the residue of those paragraphs. That would seem to include an explanation of the basis of the supposed implied limitation on the power to make the subject statement, how the supposed limitation of being "properly" satisfied is to be distinguished from impermissible merits review, and how, in any event, it affects the validity of the project approval. 29However, there are a number of discretionary considerations as to whether it is preferable for a final decision to be made on this motion or whether it should be left to the trial. 30One discretionary consideration is that the applicant has had barely any time to consider its position since cl 3D was raised by the Minister earlier this morning. I have not had the benefit of full, refined submissions by the applicant on this issue that the trial judge would have. In these circumstances, if I were to refuse leave to amend, there may be a risk of injustice to the applicant. 31Other discretionary considerations put forward by the applicant, which have some weight, are as follows: (a)The new paragraphs require or call for no new evidence. They raise points of law, not fact. (b)The factual basis for each of the new paragraphs appears in the particulars to paragraphs 24 and the documents referred to therein. The new paragraphs are within the scope of the facts already in issue in the proceedings. (c)The respondents have had notice of the amendments well prior to the time for filing written submissions for the trial. (d)The new grounds do not affect the estimated hearing length. Neither do they cause any need to vacate the hearing. With the benefit of written submissions, they should take less than an hour to argue at trial. (e)In those circumstances, there is no prejudice to the respondents. (f)Also in those circumstances, the amendments will not cause delay or any undue increase in cost. 32On balance, I am persuaded that, having regard to these considerations, it is preferable to grant leave to amend in terms of the residue of the proposed new paragraphs 24A, 24B and 24C and to let the question or questions of law thereby raised to be decided at trial.

Claim 4 SEPP 65 33At present, Claims 4 is found in paragraphs 26-29 of the Points of Claim. In paragraphs 26 and 27 the applicant pleads that the Minister approved the project subject to Condition B2, that the extent of the modifications referred to in that condition and the extent of discretion granted to the Director-General thereunder were such that the Minister was not granting approval to carry out the project pursuant to s 75J of the EPA Act and was not considering the impacts of that project and whether the project should be approved; that condition B2 delegated power to the Director-General to approve the carrying out of the project in circumstances in which there was no such power to delegate this function to the Director-General; and that it was not a modification or a condition authorised by s 75J(4) of the EPA Act 34The applicant wishes to amend Claim 4 in several respects. The following two are unopposed and I will grant leave to amend in those respects: (a)A new paragraph 26A pleads that Condition B2 is invalid because its meaning is uncertain or imprecise; and that the uncertainty and/or imprecision is such that the Minister did not approve the carrying out of the project within the meaning of s 75J(1) of the EPA Act, the Minister was not in a position to determine the consequences and impacts if the project were to be approved, and the Minister impermissibly delegated the task of approving the carrying out of the project to the Director-General. Further or alternatively it is necessary to the validity of a condition determined by the Minister under s 75J(4) that the condition have a sufficiently certain and/or precise meaning and Condition B2 is sufficiently uncertain or imprecise as not to meet that standard. (b)The addition of some words at the beginning of the current paragraph 27 of the Points of Claim. 35The Other Respondents oppose leave being granted to amend in terms of subparagraphs (b) and (c) of the applicant's proposed new paragraph 27A of the Points of Claim. Paragraph 27A is in the following terms: 27A Alternatively. if the reference to "the requirements of the Residential Flat Design Code" was a reference to the affordable housing sizes at the bottom of page 69 of the Residential Flat Design Code: (a) the First Respondent misconstrued or misapprehended the Residential Flat Design Code; (b) the First Respondent thereby failed to take into consideration the Residential Flat Design Code as required by cI 30(2)(c) of the State Environmental Planning Policy No 65-Design Quality of Residential Flat Design Development; or (c) alternatively, the First Respondent failed properly or adequately to take into consideration the Residential Flat Design Code as required by cl 30(2)(c) of the State Environmental Planning Policy No 65-Design Quality of Residential Flat Design Development. 36The basis of the Other Respondents' opposition to leave to amend being granted for subparagraphs (b) and (c) is that SEPP 65 does not apply to a Part 3A application or approval. I agree. Although the applicant did not concede this, it did not make any reasoned submission to the contrary apart from referring to the former s 75R(3) of the EPA Act, which provided that "Environmental Planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project". The issue remains whether cl 30 of SEPP 65 in its terms applies to a Part 3A application an approved project. 37Clause 4 of SEPP 65 says that it applies to the erection of a new residential flat building. However, cl 30 in its terms only applies to determination of a development application, which is defined in s 4 of the EPA Act to mean a development application under Part 4. Clause 30 of SEPP 65 is in the following terms: 30 Determination of development applications (1) After receipt of a development application for consent to carry out residential flat development (other than State significant development) and before it determines the application, the consent authority is to obtain the advice of the relevant design review panel (if any) concerning the design quality of the residential flat development. (2) In determining a development application for consent to carry out residential flat development, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained in accordance with subclause (1), and (b) the design quality of the residential flat development when evaluated in accordance with the design quality principles, and (c) the publication Residential Flat Design Code (a publication of the Department of Planning, September 2002). (3) However, if the relevant design review panel fails to inform the consent authority of its advice concerning the design quality of the residential flat development within 31 days after the request for its advice is made by the consent authority, the consent authority may determine the development application without considering any such advice and a development consent so granted is not voidable on that ground. (4) The 31-day period referred to in subclause (3) does not increase or otherwise affect the period within which a development application is required to be determined by a consent authority. 38Section 4 of the EPA Act defines "development application" is defined in s 4 of the EPA Act as meaning an application for consent under Part 4 to carry out development; "consent authority" in relation to a development application, as the council having the function to determine the application; and "development consent" as consent under Part 4 to carry out development. 39Consequently, I do not propose to grant leave to amend in terms of (b) and (c) of the proposed new 27A. I will grant leave to amend in terms of the balance of paragraph 27A.

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Cases Cited (8)