(a) Preliminary assessment
14 Section 113 and 114 of the Land Act provide:
"113. The relevant Minister in relation to a defined decision … may, by written notice to the relevant proponent within 28 days after the day on which the decision that a preliminary assessment be required is made, direct the proponent to prepare a preliminary assessment of the environmental impact of the relevant proposal.
114. Where a defined decision is of a class prescribed by the Plan, the relevant Minister shall, within the period referred to in section 113, issue a notice under that section in relation to the relevant proposal."
15 It is common ground that the decision in this case sought from (and ultimately made by) the Commissioner was a "defined decision": Land Act, s 111. The Plan, in Schedule II.1, prescribes a number of classes of defined decisions for the purposes of s 114; one of them is "Club: All proposals within 150 metres of a Residential Land Use Policy Area". It is common ground that the Casino is within (though apparently only just within) such an area. The Plan, however, provides three exceptions, two of which, according to the respondents, are applicable. A proposal for a club (or a development within any of the other prescribed classes) is excepted from the classes of defined decisions if either:
"(a) the proposal is an alteration or addition to an existing situation which does not cause significant change in the scale, size or purpose of the existing situation; [or]
(b) the proposal represents a part or a whole of a proposal which has previously been the subject, directly or indirectly, of a previous assessment or has been the subject of another form of investigation which would satisfy the requirements of a preliminary assessment under the Land Act …"
16 Section 231(1) of the Land Act provides that before approving or refusing to approve an application the relevant authority (in this case the Commissioner):
"… shall -
(a) consider -
(i) any comments of a person or body to which the application has been referred for comment;
(ii) each objection or other submission the Minister has received in relation to the application which has not been withdrawn;
(iii) a preliminary assessment under Division 2 of Part IV … ."
17 No preliminary assessment was made in relation to Casino Canberra's application. In those circumstances, the appellant's submissions are simple. The proposal fell within one of the prescribed classes. On the facts, neither of the two exceptions applied. Consequently, a preliminary assessment was required by s 114 and the Commissioner was obliged to consider it under s 231. He did not do so. Furthermore, s 8 of the Land Act provides that:
"The Territory, the Executive, a Minister or a Territory authority shall not do any act, or approve the doing of any act, that is inconsistent with the Plan."
18 The Commissioner is a Territory Authority; by approving the application in the absence of a preliminary assessment the Commissioner had done an act that was inconsistent with the Plan.
19 The reason why there was no preliminary assessment was that a delegate of the Minister had considered the question whether one was required and decided that it was not. Her minute dated 6 May 1997 dealt with the question as follows:
"The proposal also needs to be considered in the context of Appendix II.1(a), which exempts proposals from mandatory preliminary assessment if they do not cause a significant change in the scale, size or purpose of the existing situation.
Appendix II.1(b) of the Territory Plan is also relevant as it exempts proposals from mandatory preliminary assessment if they have been previously subject to an assessment which would satisfy the requirements of a preliminary assessment under the Land Act. The Casino has been the subject of a detailed Social Impact, dealing particularly with the social impact of gambling.
As the proposal does not constitute a significant change in scale, size or purpose of the existing situation, and as social impacts of the existing situation have already been addressed at length, the proposed lease variation for the Canberra Casino … will not require the preparation of a PA."
20 Senior counsel for the appellants contended that the views formed by the Minister's delegate were self‑evidently wrong and that the presence or absence of a preliminary assessment, where one was required under s 114, was a "jurisdictional fact", so that if the Commissioner proceeded to grant an approval in circumstances where, as a matter of fact, a preliminary assessment was required but had not been obtained, he acted in excess of jurisdiction. It was not to the point that s 114 imposed a duty on the relevant Minister, not on the Commissioner. The absence of the required assessment necessarily had the consequence that the Commissioner, in approving the application, infringed both s 231(1) and s 8 of the Land Act. Particularly, senior counsel sought to distinguish Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 on the basis that the provision there in question required the Heritage Commission to enter a place in the Register of the National Estate "where the Commission considers that a place that is not in the Register should be recorded as part of the national estate … [emphasis added]": Australian Heritage Commission Act 1975 (Cth), s 23(1).
21 The submissions made on behalf of the appellants, in our view, should not be accepted. It is, of course, true that there are important differences between the provisions of the Land Act and those under consideration in Australian Heritage Commission. That case had to do with s 23 of the Australian Heritage Commission Act which provided that the Australian Heritage Commission was to enter in the Register of the National Estate a place not in the Register "where the Commission considers" that the place "should be recorded as part of the national estate". The obligation of the Commission arose where it considered that, in relation to a particular place, certain statutory conditions were met. Here, the state of facts giving rise to the duty of the Minister under s 114 is stated in objective terms. In Australian Heritage Commission the decision of the Commission followed a process of public consultation; here, the preparation of a preliminary assessment initiates such a process. A feature this case has in common with Australian Heritage Commission is that here, as there, the factual question to be decided is one involving, if not necessarily "potentially difficult and complicated facts", then certainly "assessments and value judgments": see the dissenting judgment of Black CJ, approved on appeal, (1995) 60 FCR 456 at 466; (1997) 187 CLR 297 at 301.
22 Since the hearing of the appeal we have been referred to the decision of the New South Wales Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8. That case concerned s 77(3)(d1) of the Environmental Planning and Assessment Act 1979 (NSW). That provision required an applicant for development consent to lodge a Species Impact Statement with the consent authority:
"if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats …"
23 The Court of Appeal concluded that the impact on threatened species or habitat was a "jurisdictional fact" which the Court, upon review, would consider for itself on the basis of admissible evidence. In a number of respects Timbarra is similar to this case: particularly, the question of fact to be determined was stated in terms which required assessments and value judgments and the preparation of a species impact statement was one which, as here, initiated a process of public consultation. The Court of Appeal regarded the former of those matters as relevant. Spigelman CJ, with whom Mason P and Meagher JA agreed, said at [89]:
"The fact that a matter of judgment of this character is involved does suggest that it is less likely to be intended by Parliament to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ. Nevertheless, the proper construction of the statute may be that Parliament did so intend."
24 The fact that the impact statement initiated a process of public consultation was regarded as significant. Spigelman CJ said at [76]:
"It can readily be seen that an SIS, when required, plays a critical role in the quality of the decision making process, by ensuring that detailed information is available to primary decision makers in a systematic and ordered way. This, in my opinion, makes it more likely that the legislature intended the circumstances which lead to the requirement to prepare an SIS, to be both objectively ascertained and essential."
25 His Honour added, at [81]:
"The purpose of an SIS in the legislative scheme strongly suggests that the occasion for its creation is a jurisdictional fact. The consent authority's opinion as to the existence of that occasion is not determinative, because an SIS is not only directed to informing a consent authority. It is also directed at informing both those who may make submissions and the Director General of National Parks and Wildlife."
26 Two other factors were regarded as significant, neither having a counterpart in this case. One was that the legislation placed on the applicant the onus of lodging a species impact statement with the consent authority, as one of the documents necessary (where the legislation required it) to initiate the consideration by the consent authority of the matter to be decided (at [48] - [53]). The other factor was that the "likely effect" was one of two matters, either of which gave rise to a requirement that a species impact statement be prepared and lodged. The second matter was that the land sought to be developed "is, or is a part of, critical habitat". Whether land comprised "critical habitat" was not, in any sense, a question involving assessment or opinion. If, under other legislation, land had been declared to be "critical habitat" then it was necessarily "critical habitat" for the purposes of the Environmental Planning and Assessment Act; if it had not been so declared, it was not. Spigelman CJ said, at [62] - [64]:
"No issue of 'appearance' or 'opinion' or 'satisfaction' can arise in this respect. Whether or not a development is proposed to occur on critical habitat is entirely a matter of objective fact. … In all relevant respects the formulation 'likely to significantly affect' is equated to 'critical habitat' in s 77(3)(d1) and other sections. … It is unlikely that Parliament intended any significant difference in the statutory treatment between the two cases. Such would arise if the Respondent's submissions are correct."
27 In each case the question is one of construction of the legislation. Here, we think it is significant that not only is the question one of opinion or assessment, upon which reasonable minds might differ, but also that the initiator of the process is not the applicant for consent or the consent authority, but the relevant Minister. Secondly, it is relevant that the cases where a preliminary assessment is required are not defined in the Land Act itself but are left to be "prescribed" in the Plan, an instrument of a kind likely to set standards in terms requiring the formation of opinion and the exercise of discretion. It is particularly significant, in our view, that the legislature has chosen to separate, in principle (no doubt in some circumstances the relevant Minister may also be the consent authority, though that is not the case here), the functions of the relevant Minister and consent authority. Where the duty cast on the consent authority by s 231(1) of the Land Act is to consider "a preliminary assessment …" the authority is not required, in our view, to do anything more than consider such an assessment if there is one: in other words it is not for the authority to consider whether a preliminary assessment is required, that obligation being cast not on the authority but on the Minister. That being so, in our view the satisfaction of the criteria set by the Plan is not a jurisdictional fact in relation to the decision to be made by the authority. The proper construction of the provisions, we think, is that the relevant Minister must determine (as the Minister's delegate did in this case) whether according to the criteria in the Plan, a preliminary assessment is required. If the relevant Minister concludes that, applying par (a) or one of the other exceptions, a preliminary assessment is not required, that decision, in our view, cannot be attacked collaterally in an application for prerogative relief or under the ADJR Act to which the relevant Minister is not a party.
28 In the circumstances of Canberra Tradesmen's Union Club Inc v Minister for the Environment, Land and Planning (Higgins, Heerey and Mansfield JJ, Federal Court of Australia, 18 September 1998, unreported) it was held that a similar decision of the relevant Minister was not open to review, since it was a mere "step along the way" (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321); and that may particularly be so in circumstances where the relevant Minister is also the decision maker in respect of an application under s 230(1) of the Land Act. It by no means necessarily follows that such a decision is never reviewable - the Full Court in Canberra Tradesmen's Union Club left open the possibility that in some circumstances it might be - or, particularly, that in the present case the decision of the delegate would not be, or might not have been, reviewable in proceedings to which the Minister was a party. It is, however, unnecessary to pursue that issue. Nor is it necessary for us to consider the scope or limits of any such review. The view we take, however, has the consequence that the Commissioner's decision to approve the application cannot be attacked, in these proceedings, on the ground that a jurisdictional fact did not exist. If there is a preliminary assessment, the relevant authority (here, the Commissioner) is bound by s 231(1) to consider it before approving any application; but if there is no preliminary assessment because the Minister has determined that one is not required and has not elected, under s 113, to require one, the relevant authority does not infringe s 231(1) by approving an application without considering "a preliminary assessment", nor by so doing does it infringe s 8.
29 Secondly, we agree with the trial judge that it was not established, in any event, that the delegate was wrong in relation to par (a). As will appear, the mere variation of the lease did not itself authorise the use of any part of the Casino premises as a club. Let it be assumed, however, that it was appropriate to proceed on the basis that the "change in the existing situation" effected by the approval involved the use of part of the Casino premises as a "club" as defined in the amended lease, which was authorised to operate, and in fact operated, gaming machines. The evidence indicated that Casino Canberra had in mind that it would, in due course and if it obtained the necessary approvals, sublease part of the premises to a club, for a substantial rental, and that the club would operate gaming machines. But there was a dearth of evidence before the Court relevant to the extent or significance of the changes to the existing situation. Particularly, so far as we can discern from the material before us, the Court simply did not have before it evidence to enable it to form a view as to what precisely the "existing situation" was or what precise difference - other than the assumed presence of gaming machines - the operation of the club on part of the premises might make. Certainly it was not suggested that there would be any change in the size or scale of the building. There is a slight clue, perhaps, in an affidavit of the financial controller of Casino Canberra, to which we were referred, in which he said that he considered that:
"… the establishment of a club adjacent to the Casino will provide the following benefits to the Casino:
· provide sub‑lease payments of approximately $1,100,000.00 per annum,
· enhance the capacity to provide services to the community, tourist visitors to Canberra and other Casino patrons,
· provide a broader revenue base due to the additional services provided,
· will address the fact that many potential patrons are diverted by the lack of poker machines within the Casino,
· the activities associated with a licensed club will be complimentary [sic] to the activities of the Casino."
30 But on the basis only of that information, and whatever precise content one gives to the word "significant", the Court was, and is, in no position to hold that the delegate was not justified in deciding as she did in relation to par (a).
31 That being so, it is unnecessary to consider par (b). We observe only that it may be that the "Social Impact, dealing particularly with the social impact of gambling" referred to by the delegate of the Minister, conducted before the Casino was built, might well not qualify as an "investigation which would satisfy the requirements of a preliminary assessment under the Land Act"; but the "Social Impact" is not before us, and we are in no position to do more than speculate.