Carr v Minister for Land and Water Conservation

IN THE LAND AND 10675 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 22 May 2000

ROBERT CARR Applicant v MINISTER FOR LAND AND WATER CONSERVATION Respondent

1. This is a most unusual class 1 appeal. The applicant, Mr R J Carr, appeals against the determination of the Minister for Land and Water Conservation granting in the applicant's favour a development consent to clear native vegetation subject to conditions. The applicant appeals against the whole of that development consent, and not merely the conditions subject to which it was granted. He seeks an order from the Court determining the development application by the refusal of consent.

2. At first glance, it seems strange that the applicant has lodged a class 1 appeal when the Minister granted (rather than refused) his development application. But the applicant does not now wish to have the development consent at all. He contends that it is of no benefit to him because it relates to development which is significantly different from that for which he applied. Moreover, the conditions upon which the development consent was granted are framed, so the applicant contends, in such a way as to require him to clear land only in accordance with the regime it provides, and therefore disentitle him from taking advantage of the specific exemptions provided in the Native Vegetation Conservation Act 1997 ("the NVC Act"). The applicant has attempted without success to get the Minister to revoke the development consent, and, furthermore, there is no power under the Environmental Planning and Assessment Act 1979 ("the EPA Act") for surrender or abandonment of a development consent ( Auburn Council v Nehme (1999) 106 LGERA 19 at 25; Bourke Shire Council v Dwyer (Talbot J, NSWLEC, 9 August 1996, unreported)). Hence the applicant has appealed and seeks the refusal of consent.

3. The applicant is the registered proprietor of land comprising an area of about 80 hectares ("the site") being lot 44 in DP 753205 and situated at Barbies Road, Bungwahl. There is no issue that clearing of native vegetation on the site or any part of it requires development consent under s 21 of the NVC Act.

4. The applicant lodged a development application with the Department of Land and Water Conservation on 20 January 1999. He sought development consent for the clearing of about 40 hectares of the site. The areas intended to be cleared are delineated on the map annexed to this judgment and marked "1". Those areas comprised:

(a) an area marked "A"; (b) an area marked "B"; and (c) an area along the whole of both the northern and eastern perimeters, along part of the southern perimeter and along part of the western perimeter. 5. On 23 March 1999, the applicant modified the development application in accordance with the recommendations made in a fauna habitat survey report prepared by Dr Toivo Zoete of WBM Oceanics Australia. The areas sought to be cleared were reduced and are delineated on map "2" annexed to this judgment. Those areas comprise four parts:

(a) an area on the southern part of the site; (b) an area on the western part of the site; (c) an area traversing the site from south to north; and (d) an area along the whole of the northern perimeter of the site.

The Department accepted the modification to the development application, and reference in this judgment to "the development application" will be to the development application as so modified.

On 23 April 1999, development consent, numbered TR9901, was granted subject to conditions. It grants consent to the clearing of native vegetation in three separate areas of the site, each of which is delineated upon a map called "Diagram 1" and a copy of which is map "3" annexed to this judgment. Attached to the notice of determination of development consent is a document headed "Conditions of Consent" and thereafter appear the words "Consent is granted to clear approximately 30 hectares subject to the following conditions".

11 conditions of consent are set out. For present purposes, the relevant conditions are as follows: 1. All vegetation must be retained with the exception of areas where consent to clear is granted as schematically represented in Diagram 1, and with the exception of: - clearing along boundary fences where required for fire control; complete removal of vegetation to a maximum width of three (3) metres, plus underscrubbing (removal of vegetation less than 3 metres in height) to an additional maximum width of ten (10) metres; - clearing carried out in accordance with a bushfire management plan under the Rural Fires Act 1997; and

• clearing noxious weeds under the Noxious Weeds Act 1993. With regard to the areas that may be cleared as schematically represented in Diagram 1: - Area A may be completely cleared for pasture improvement; and

• Area B may only be underscrubbed with minimal ground disturbance.

3. A twenty (20) metre buffer on all drainage lines measured from the apparent centre line must be retained.

11. Clearing under this consent may only be undertaken within a two (2) year period from the date of commencement of clearing

After the class 1 application had been filed and served, the parties identified, by agreement, six preliminary questions of law. They are as follows:

(1) Was it open to the Minister to grant development consent number TR9901 to clear a part of the area for which application was made? (2) Was it open to the Minister to grant development consent number TR9901 to clear native vegetation in areas different from the area for which application was made? (3) Was it open to the Minister to grant development consent number TR9901 to clear native vegetation in a manner different from that for which application was made? (4) Was it open to the Minister to grant development consent TR9901 to clear native vegetation of a type or types different from that in respect of which the application was made? (5) Did the consent granted by the Minister significantly alter the development in respect of which the application was made, or leave open the possibility that development carried out in accordance with the consent will be significantly different from the development for which application was made? (6) Is it open to the Court, on appeal, to uphold the consent granted by the Minister?

The proceedings were set down for a preliminary hearing confined to the questions of law, but it became apparent that they could not be determined in the absence of findings of fact, and, accordingly, the questions were stood over for determination in the course of the full class 1 hearing.

It is clear, from the preliminary questions of law and from the way the hearing was conducted by the parties, that the real matter of contention between them was whether or not it was open to the Minister to grant the development consent in relation to the areas of the site which he identified and upon the conditions which he did. In particular, the applicant contended that the development to which consent was given was so significantly different to the development for which consent was sought that it was not open to the Minister to make the determination that he did, whilst the Minister contended that there was no significant difference and that the determination he made was open to him.

But these are not class 4 proceedings in which the validity of an administrative decision may be open to challenge. Rather, these proceedings involve the determination of the development application afresh, that is, they involve an application to the Court to determine on the merits whether or not to grant development consent. They do not require a decision as to whether or not the Minister made some error in granting the development consent.

That conclusion is derived from the statutory background to the proceedings, to which I now turn.

As I have earlier said, development consent was required for the clearing of native vegetation upon the site. That follows from the prohibition contained in pt 2 of the NVC Act, s 21(2), which relevantly provides that a person must not clear native vegetation on any land except in accordance with a development consent that is in force.

The following sections of the NVC Act provide for the granting of development consent: 14. Consent authority for clearing For the purposes of the EPA Act, the Minister is the consent authority for any development application made under that Act for any clearing that requires development consent because of this Part. 15. Granting of development consent (1) If development consent is, because of this Part, required to clear native vegetation …, that development consent may be obtained by the Minister making a determination, in accordance with Part 4 of the EPA Act, to grant development consent.

(2) For the avoidance of doubt, Part 4 of the EPA Act applies to and in respect of that development consent in the same way as it applies to and in respect of development consent that may be required by an environmental planning instrument.

Relationship with Part 5 of EPA Act Part 5 of the EPA Act does not apply to any clearing carried out in accordance with this Part, and any such clearing is not an activity for the purposes of Part 5 of the EPA Act.

The reference to "this Part" is a reference to Part 2 of the NVC Act.

16. Section 97 of the EPA Act, which appears in pt 4 of that Act, relevantly provides that an applicant "who is dissatisfied with the determination of a consent authority" may appeal to this Court. The applicant is clearly a person who is dissatisfied with the determination of a consent authority, and accordingly it was open to him to institute class 1 proceedings, even though he is appealing from a grant of development consent rather than, as is usual, appealing from a refusal of development consent.

Section 17(d) of the Land and Environment Court Act 1979 ("the LEC Act") provides that an appeal pursuant to s 97 of the EPA Act is to be heard and disposed of by this Court in its class 1 jurisdiction. Section 39 of the LEC Act provides for the powers of this Court in hearing and disposing of, amongst others, a class 1 appeal. The Court shall have "all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal" (s 39(2)). Furthermore, the appeal shall be by way of rehearing (s 39(3)).

Against that background, the question of the correctness of the development consent is not an issue. The proper approach, in my opinion, was set out by Waddell J in Sofi v Wollondilly Shire Council and Anor (1975) 31 LGRA 416. That case involved at first instance an appeal to the Local Government Appeals Tribunal from the decision of a local council, the appeal being brought under s 342N(2) of the Local Government Act 1919. His Honour held, at p 421, that such an appeal constituted an appeal against the exercise of an administrative decision, and took the form "of a complete rehearing and the exercise of original jurisdiction having regard to the … evidence" . At p 423, his Honour said: Secondly, the true nature of the proceedings before the Tribunal is that of original rather than appellate proceedings: the Tribunal is concerned to investigate whether or not the appellant's application should be granted rather than to determine whether or not the decision of the council appealed from was correct. In such a proceedings the decision of the council is no more than a relevant fact to which varying degrees of weight may be attached.

Since the class 1 appeal in this case is by way of rehearing, as I have noted, there is no relevant difference on this point between this appeal and the appeal the subject of Sofi v Wollondilly. The approach, therefore, that I propose to take is to determine on the merits whether or not the development application should be granted or refused. Although for these reasons I do not think that the preliminary questions of law arise for determination in these proceedings, nevertheless those questions were fully argued, and I propose to express an opinion about them but, first, I deal with the class 1 appeal on its merits.

A consideration of the development application on its merits raises three issues. The first and most critical issue is the potential impact of the proposed clearing upon the conservation value of the site. The second issue is whether the development application should be refused upon the ground of low economic benefit from the proposed clearing. The third issue is whether the development application was in proper form in the absence of a species impact statement ("SIS").

Mr Larkin did, however, raise another issue. He submitted that the applicant does not now wish to carry out any clearing upon the site, neither in the areas which were the subject of the development application, nor in the areas which are the subject of the development consent. As it happens, there was no evidence that this is the applicant's current position, and, in a statement which was tendered in evidence, the applicant did not go so far as to say that he did not want any clearing at all. I am content to assume, however, for the purpose of dealing with Mr Larkin's submission, that the applicant does not now wish to clear any part of the site. In Mr Larkin's submission, the consequence of that fact must be that the Court should determine the development application by the refusal of consent. The Court could not grant development consent and impose conditions in circumstances where no development is proposed, because to do so would be to infringe the planning principle that conditions of consent must relate to the development which is proposed ( Newbury District Council v Secretary of State for the Environment [1980] 1 All ER 731). I think, however, that Mr Larkin's submission is misconceived. There is proposed development, and that is the development contemplated by the development application. It is that development which enlivens the Court's jurisdiction because, as I have previously explained, in a class 1 appeal the Court stands in the shoes of the consent authority and determines the development application afresh. I would only say that the fact that the applicant does not wish to carry out any clearing at all, despite the clearing contemplated by the development application, may be a fact for the Court to consider in the exercise of its discretion as to whether to grant or refuse consent, but it is not determinative and does not inevitably require the refusal of consent. I put aside this issue, therefore, and turn to the three merit issues I have earlier outlined.

There were three pieces of evidence which went to this issue. The first was the report of Dr Zoete, to which I have earlier referred, and which accompanied the development application. The second was the assessment of the development application by Mr D A Russell, a vegetation management officer in the employ of the Department of Land and Water Conservation. The third was a report by Dr P F Brennan, an ecologist, on the ecological differences between the development application and the development consent.

Dr Zoete examined the whole of the site in order to map its significant vegetation and to consider the potential presence of suitable habitat for fauna species listed as vulnerable under the Threatened Species Conservation Act 1995 ("the TSC Act"), which he called "the species of interest" . He described four separate habitat types upon the site, being open forest of the upper slopes (habitat 1), open forest of the lower slopes (habitat 2), woodland of drainage depressions (habitat 3) and shrub land and low woodland (habitat 4). He noted areas of disturbance from past logging, grazing and clearing and he considered the site's potential as a habitat for "the species of interest" . He concluded as follows: … the site provides potential habitat for all of the species of interest, except for the Yellow-bellied Glider. Most of this potential is concentrated in the mature forests of Habitat Types 1 and 2. Habitat Types 3 and 4 primarily provide forage to arboreal fauna during the flowering and growth seasons (spring-summer) 24. In accordance with his conclusions, Dr Zoete recommended (and the development application sought approval for) the clearing of native vegetation mainly in habitats 3 and 4, that is, chiefly in the disturbed and regrowth areas, and corridors would be maintained to forested areas adjacent to the site. Dr Zoete concluded that "[a]s a result of these measures, it is expected that clearing operations over the area shown … [in the development application] … would not result in significant impacts on the regional habitat status of the fauna species of interest".

25. Mr Russell (with the assistance of two other Departmental officers) carried out an assessment of the whole of the site, which he called "the AUA", presumably meaning "the area under assessment". He described the vegetation throughout the entire site, and divided the area proposed for clearing into two forest community types - first, open forest dominated by forest red gum, and, secondly, open forest dominated by white stringybark, Sydney peppermint and smoothbarked apple. His conclusion was as follows: … the more degraded areas of vegetation are not considered to have significant conservation value in regard to conservation status and condition of the vegetation. However, much of the forested area proposed for clearing has significant conservation value in these regards due to the following factors:

• the relative rarity of these vegetation types in the locality and/or in the region
• a large proportion of these vegetation types are likely to be extensively cleared or highly modified in the locality and in the region
• the excellent condition of these vegetation types in the AUA, particularly when compared to other examples in the locality, including those contained in conservation reserves
• the likelihood that these vegetation types are inadequately conserved in the region

Consequently, these forest types on the AUA are considered to be in unusually good condition as examples of their types, to be inadequately conserved in the region, and therefore have local and regional significance in the context of conservation status and condition of the vegetation.

26. Mr Russell then considered the remanency value and connective importance of the vegetation, and in that regard his conclusion was as follows: … the AUA contains vegetation in excellent condition on a landform element that is extensively cleared and/or modified in the region, and comprises part of a wildlife corridor which is likely to be important for the movement of wildlife including threatened species such as the Koala. Consequently, the vegetation in the AUA is considered to be locally and regionally significant in the context of Remnancy value and connective importance.
27. Furthermore, Mr Russell concluded that the vegetation in the AUA "… has good floristic diversity and high structural diversity which in turn is expected to support a diverse range of fauna in good densities, including a number of potential threatened species".

28. Attached to Mr Russell's report was a threatened species assessment report, in which ten threatened fauna species and two threatened flora species were identified as potentially occurring in the AUA. That report concluded that adverse impact upon them would be avoided if the following mitigation occurred:

• retention of all uneven aged forest … including the broad drainage depression in the east and the swampy area in the northeast …;
• maintenance of suitable connections to adjacent forest areas, including mature forest in the southwest …;
• retention of all hollow bearing trees; and
• the retention of riparian buffer areas.

29. It might be expected that Mr Russell, having identified the significant conservation value of the areas proposed to be cleared, would have recommended refusal of development consent. He did not do that. Instead, he concluded that "appropriate mitigating prescriptions will be applied as consent conditions". Those conditions were framed so as to result in development consent being granted for the clearing of native vegetation in areas significantly different from the areas which had been sought to be cleared in the development application. The inescapable inference from Mr Russell's report and the development consent as framed is that the development proposed in the development application would have an adverse and unacceptable impact on the conservation values which Mr Russell identified.

30. Having regard, presumably, to the fact that he was seeking refusal of the development application, the applicant did not seek to contradict Mr Russell's conclusions. In fact, the applicant tendered Dr Brennan's report, which supported those conclusions. Dr Brennan concurred with Mr Russell's assessment of the forest areas as being in excellent condition. As to the open woodland dominated by forest red gum, Dr Brennan concluded as follows: The total area of this community type on the site is approximately 8.8 ha. Mr Carr's amended application would have resulted in the clearing of 6.34 ha or about 70% of this community on the site. The clearing of such a large percentage of this community would have very significantly reduced its conservation value.
31. As to the open forest dominated by white stringybark, Sydney peppermint and smoothbarked apple, Dr Brennan concluded as follows: The total area of this community type on the site is approximately 25 ha. Mr Carr's amended application would have resulted in the total clearing of approximately 11 ha or about 45% of this community on the site. The clearing of such a large percentage of this community would have very significantly reduced its conservation value.
32. The weight of evidence supports a finding, and I so find, that the clearing of a major part of the areas proposed by the development application would have a significant impact upon the conservation value of the site, and would impact upon the habitat of species listed as vulnerable under the TSC Act. That finding justifies refusal of consent.

In his assessment, Mr Russell examined on an economic basis the suitability of the site for clearing. He noted the low potential agricultural productivity of the site, and concluded that the clearing which was proposed was not justified "in socio-economic terms" .

In the applicant's statement (to which I have earlier referred) he reiterated the statement which he had made in the development application to the effect that the main economic motive for clearing the site was to provide security of access to an adjoining property (owned by a family company) as an alternative to relocating the access road. He intended to pasture improve and to graze cattle upon the cleared land in order to generate some return, but his economic assessment was based upon the preferred option of clearing some of the site rather than relocation of the road.

In view of my conclusion that development consent should be refused as a consequence of the impact of the proposed clearing upon the conservation value of the site, it is unnecessary for me to determine if the proposed clearing is of low economic benefit, and, if it is, whether that is a ground for refusal of development consent. The evidence on this issue in any event is scanty, and accordingly I decline to make any determination in relation to it.

A development application is required to be accompanied by an SIS under s 78A(8)(b) (which falls within pt 4 of the EPA Act) in circumstances where the application is in respect of development on land that is likely to significantly affect threatened species, populations or ecological communities, or their habitats.

Since the threatened species report which formed part of Mr Russell's assessment identified ten fauna species and two flora species listed as vulnerable and likely to occur on the site, a consideration of the eight-point test of significant affect set out in s 5A of the EPA Act may have been warranted so as to determine if an SIS was required. No such consideration appears to have been carried out, and no SIS was requested or furnished.

However, this issue was only raised during the cross-examination of Mr Russell by Mr Larkin, who appeared on behalf of the applicant. In particular, there was no evidence touching upon the eight-point test of significance in s 5A. Mr Russell did not respond directly to questions about whether an SIS was required, but only stated that it was not necessarily the case that an SIS was required.

In these circumstances, once again, it is unnecessary for me to determine the issue, and I decline to do so in circumstances where the issue was raised peripherally and in the absence of detailed evidence.

I propose to determine the development application by the refusal of consent for the reasons which I have outlined. Before proceeding to formal orders, however, I turn to express an opinion on the preliminary questions of law.

The answers to these questions requires a comparison of the development application and the development consent. There are two matters to be noticed for the purposes of that comparison.

First, reference to the annexed map 2 (which represents the areas sought to be cleared according to the development application ("the application areas")) and the annexed map 3 (which represents the areas permitted to be cleared by the development consent ("the approved areas")) reveals that the respective areas are different. It was conceded by Mr Leggat, on behalf of the respondent, that the approved areas are smaller in total than the application areas, that the approved areas are predominantly a subset of the application areas, but that some of the approved areas are in parts of the site that the applicant did not proposed to clear.

Secondly, reference should be made to four vegetation communities identified by Mr Russell and which he numbered 1, 2A, 2B and 3 (it is unnecessary, for the purposes of the comparison, to set out his description of each of those communities). In his evidence, Dr Zoete made some comparative calculations of the application areas and the approved areas by reference to each of these communities. His calculations were as follows:

Vegetation community Application areas in hectares Approved areas in hectares 1 9.7 10.2 2A 6.1 ---- 2B 11.7 8.1 3 10.1 4.7 TOTAL 37.5 23.0

In the light of that factual background and the terms of both the development application and the development consent, I find that the difference between the development application and the development consent is significant in the following respects:

1. In relation to each of the vegetation communities, what was sought and what was granted are substantially different. In the case of vegetation community 1, more area was approved than was sought, but in the case of the other communities, what was sought was greater than what was approved;
2. Similarly, regarded as a total, there is a substantial difference in the area of 37.5 hectares sought to be cleared compared with 23 hectares which was approved;
3. The effect of condition 1 of the development consent in any event is that only a part of the approved area may be completely cleared; that is, only Area A is approved for complete clearing; Area B must only be underscrubbed with minimal ground disturbance;
4. There is at least one substantial difference in the locality of the application areas and the approved areas. One of the application areas was an area traversing the site (in the vicinity of an electricity easement) from north to south. This area does not form part of the approved areas, and thus impedes the movement of grazing stock across the site.

It is true, as Mr Leggat submitted, that conceptually the development application and the development consent are the same, in that the development which was the subject of the development application was the clearing of native vegetation on part of the site, and the development which is the subject of the development consent is also the clearing of native vegetation on part of the site. But that is a superficial comparison. What is required is a comparison of the substance of the development which was proposed and the development which was approved.

The same comment may be made in relation to other similarities which Mr Leggat noted. He pointed out that the development application sought to refrain from clearing those parts of the site identified by Dr Zoete as habitats 1 and 2 (being the open forest of the upper and lower slopes) and the development consent carried that concept through. Similarly, the basic intention for clearing on the site (that of pasture improvement) carried through from the development application to the development consent. Furthermore, the timing and duration sought (two years) was also carried though to the development consent. Similarly, the method of clearing proposed (by bulldozer and stick rake) was not prohibited. But these similarities (and several others of a like vein pointed out by Mr Leggat) are matters of detail, and they do not, in my opinion, go to the substance of the development which was sought and the development which was approved.

I find that the development which was the subject of the development consent is significantly different from the development which was the subject of the development application. Undoubtedly, the application areas were regarded by the applicant as the most suitable and appropriate having regard to his purposes and the advice of Dr Zoete, and, undoubtedly, the approved areas were regarded by the Minister as the most suitable and appropriate having regard to Mr Russell's report and the aims and objectives of the NVC Act. But those notions of suitability and appropriateness do not coincide, and the inevitable consequence has been that the development as sought is significantly different from the development as approved.

That finding has the consequence that it was not open to the Minister to grant the development consent in respect of the areas of the site and upon the conditions which he did. In the first place, the course that the Minister took was not open to him under s 80(1) (within part 4) of the EPA Act. That section provides as follows: 80(1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or

The reference in subclauses (a) and (b) to "the application" must be construed, in my opinion, as requiring a consent authority to exercise its powers under s 80(1) only in respect of the particular development application which was lodged. An applicant may amend or vary a development application in the course of its assessment by the consent authority (cl 48A of the Environmental Planning and Assessment Regulation 1994 expressly allows for such a possibility) but there is no power under the EPA Act or that Regulation for the consent authority of its own motion to make amendments or variations to a development application. What must be determined by the consent authority is the development application as lodged or as subsequently amended or varied by the applicant. The consent authority is not empowered to grant consent to a development which is significantly different from the development which was sought because, as is self-evident, that would not amount to a grant of consent to "the development application".

That conclusion is not disturbed by what is stipulated as the objects of the NVC Act. Relevantly, s 3 of the NVC Act states that its objects are:

(a) … (b) … (c) to protect native vegetation of high conservation value, and (d) to improve the condition of existing native vegetation, and (e) … and (f) to prevent the inappropriate clearing of vegetation … 51. In my opinion, the exercise of the Minister's powers as a consent authority under the NVC Act to grant consent or refuse consent to a development application must be undertaken for the purpose of these objectives, but that does not derogate from his obligation under s 15(1) to make "a determination, in accordance with Part 4 of the EPA Act, to grant development consent".

52. The development consent is framed in a rather peculiar way. On the first page, it sets out the proposed development as being "[c]learing and thinning of approximately 50 hectares of native vegetation" , and under the heading "Determination" there is a ticked box providing that "consent granted subject to conditions described below". At first glance, it might be thought that the development consent was granted to the development as proposed, but that interpretation is dispelled, I think, by the opening words of the conditions of consent which appear on the next page, which are "[c]onsent is granted to clear approximately 30 hectares subject to the following conditions:". It is those conditions which underpin the significant differences which I have found between the development for which consent was sought, and the development for which consent was granted.

53. It is not open to a consent authority to grant consent upon conditions which significantly alter the development for which consent was sought. That principle was enunciated by Priestley JA in Mison and Ors v Randwick city Council and Ors (1991) 23 NSWLR 734 at 737 as follows: In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application … Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made.
54. Mr Leggat referred to s 80A(1) of the EPA Act as empowering a consent authority to impose conditions of the type which were imposed in this case. Section 80A(1) relevantly provides as follows: 80A (1) Conditions - generally A condition of development consent may be imposed if: (a) …

(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any subject matter referred to in section 79C(1) applicable to the development the subject of the consent, or

(g) it modifies details of the development the subject of the development application, or

55. I agree with the submission of Mr Larkin that these subsections of s 80A(1) do not assist the Minister's case. First s 80A(1)(c) must be taken, in my opinion, to permit a condition which requires the modification or cessation of existing development carried out on land, not the modification of the development proposed in the development application. Secondly, by virtue of referring to the subject matters of s 79C(1) (which include relevant environmental planning instruments, the likely impacts of the development, the suitability of the site for the development, the submissions of objectors and the public interest) s 80A(1)(f) is cast in wide terms. But it does not authorise conditions which so alter the development that it becomes significantly different from the development for which consent was sought. That is because s 80A(1)(f) refers only to those subject matters as are applicable "to the development the subject of the consent". In other words, s 80A(1)(f) presupposes the proposed development and authorises conditions which require work which relates to subject matters applicable to that development. Thirdly, s 80A(1)(g) refers to the modification of the "details" of the proposed development, rather than a modification of the substantial nature of the proposed development. Accordingly, s 80A(1)(c), (f) and (g) do not, in my opinion, derogate from the principle enunciated by Priestley JA in Mison v Randwick.

56. Of course, it is a matter of fact and degree, whether the development the subject of a development consent is in any particular case, by reason of the terms of that development consent or the conditions imposed by it, significantly different from the development for which consent was sought. It is not appropriate, therefore, to answer the preliminary questions of law hypothetically, and the answers to similar questions in other cases might, on their facts, be different. Nevertheless, on the facts of this case, I would, if it was necessary, answer the preliminary questions of law as follows:

1. Was it open to the Minister to grant development consent number TR9901 to clear a part of the area for which application was made?
2. Was it open to the Minister to grant development consent number TR9901 to clear native vegetation in areas different from the area for which application was made?
3. Was it open to the Minister to grant development consent number TR9901 to clear native vegetation in a manner different from that for which application was made?
4. Was it open to the Minister to grant development consent TR9901 to clear native vegetation of a type or types different from that in respect of which application was made? Answer: In response to each question, no, because the development which is the subject of development consent number TR9901 is significantly different to the development for which application was made.

Question 5: Did the consent granted by the Minister significantly alter the development in respect of which the application was made, or leave open the possibility that development carried out in accordance with the consent will be significantly different from the development for which application was made? Answer: Yes.

Question 6: Is it open to the Court, on appeal, to uphold the consent granted by the Minister?

Answer: The question does not arise, because the jurisdiction of the Court in this class 1 appeal is to determine, on the merits and by way of rehearing, whether to grant or refuse the development application. The proceedings do not require the Court to either uphold or dismiss the consent granted by the Minister.

57. In accordance with the foregoing, the formal orders of the Court are:

(1) The appeal is upheld. (2) Development application No TR9901 for the clearing of native vegetation on part of lot 44 DP 753205 is determined by the refusal of consent. (3) The exhibits may be returned.

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.

The total area of this community type on the site is approximately 8.8 ha. Mr Carr's amended application would have resulted in the clearing of 6.34 ha or about 70% of this community on the site. The clearing of such a large percentage of this community would have very significantly reduced its conservation value.

31. As to the open forest dominated by white stringybark, Sydney peppermint and smoothbarked apple, Dr Brennan concluded as follows:

The total area of this community type on the site is approximately 25 ha. Mr Carr's amended application would have resulted in the total clearing of approximately 11 ha or about 45% of this community on the site. The clearing of such a large percentage of this community would have very significantly reduced its conservation value.

32. The weight of evidence supports a finding, and I so find, that the clearing of a major part of the areas proposed by the development application would have a significant impact upon the conservation value of the site, and would impact upon the habitat of species listed as vulnerable under the TSC Act. That finding justifies refusal of consent.

33. In his assessment, Mr Russell examined on an economic basis the suitability of the site for clearing. He noted the low potential agricultural productivity of the site, and concluded that the clearing which was proposed was not justified "in socio-economic terms".

34. In the applicant's statement (to which I have earlier referred) he reiterated the statement which he had made in the development application to the effect that the main economic motive for clearing the site was to provide security of access to an adjoining property (owned by a family company) as an alternative to relocating the access road. He intended to pasture improve and to graze cattle upon the cleared land in order to generate some return, but his economic assessment was based upon the preferred option of clearing some of the site rather than relocation of the road.

35. In view of my conclusion that development consent should be refused as a consequence of the impact of the proposed clearing upon the conservation value of the site, it is unnecessary for me to determine if the proposed clearing is of low economic benefit, and, if it is, whether that is a ground for refusal of development consent. The evidence on this issue in any event is scanty, and accordingly I decline to make any determination in relation to it.

36. A development application is required to be accompanied by an SIS under s 78A(8)(b) (which falls within pt 4 of the EPA Act) in circumstances where the application is in respect of development on land that is likely to significantly affect threatened species, populations or ecological communities, or their habitats.

37. Since the threatened species report which formed part of Mr Russell's assessment identified ten fauna species and two flora species listed as vulnerable and likely to occur on the site, a consideration of the eight-point test of significant affect set out in s 5A of the EPA Act may have been warranted so as to determine if an SIS was required. No such consideration appears to have been carried out, and no SIS was requested or furnished.

38. However, this issue was only raised during the cross-examination of Mr Russell by Mr Larkin, who appeared on behalf of the applicant. In particular, there was no evidence touching upon the eight-point test of significance in s 5A. Mr Russell did not respond directly to questions about whether an SIS was required, but only stated that it was not necessarily the case that an SIS was required.

39. In these circumstances, once again, it is unnecessary for me to determine the issue, and I decline to do so in circumstances where the issue was raised peripherally and in the absence of detailed evidence.

40. I propose to determine the development application by the refusal of consent for the reasons which I have outlined. Before proceeding to formal orders, however, I turn to express an opinion on the preliminary questions of law.

41. The answers to these questions requires a comparison of the development application and the development consent. There are two matters to be noticed for the purposes of that comparison.

42. First, reference to the annexed map 2 (which represents the areas sought to be cleared according to the development application ("the application areas")) and the annexed map 3 (which represents the areas permitted to be cleared by the development consent ("the approved areas")) reveals that the respective areas are different. It was conceded by Mr Leggat, on behalf of the respondent, that the approved areas are smaller in total than the application areas, that the approved areas are predominantly a subset of the application areas, but that some of the approved areas are in parts of the site that the applicant did not proposed to clear.

43. Secondly, reference should be made to four vegetation communities identified by Mr Russell and which he numbered 1, 2A, 2B and 3 (it is unnecessary, for the purposes of the comparison, to set out his description of each of those communities). In his evidence, Dr Zoete made some comparative calculations of the application areas and the approved areas by reference to each of these communities. His calculations were as follows:

44. In the light of that factual background and the terms of both the development application and the development consent, I find that the difference between the development application and the development consent is significant in the following respects:

1. In relation to each of the vegetation communities, what was sought and what was granted are substantially different. In the case of vegetation community 1, more area was approved than was sought, but in the case of the other communities, what was sought was greater than what was approved;

2. Similarly, regarded as a total, there is a substantial difference in the area of 37.5 hectares sought to be cleared compared with 23 hectares which was approved;

3. The effect of condition 1 of the development consent in any event is that only a part of the approved area may be completely cleared; that is, only Area A is approved for complete clearing; Area B must only be underscrubbed with minimal ground disturbance;

4. There is at least one substantial difference in the locality of the application areas and the approved areas. One of the application areas was an area traversing the site (in the vicinity of an electricity easement) from north to south. This area does not form part of the approved areas, and thus impedes the movement of grazing stock across the site.

45. It is true, as Mr Leggat submitted, that conceptually the development application and the development consent are the same, in that the development which was the subject of the development application was the clearing of native vegetation on part of the site, and the development which is the subject of the development consent is also the clearing of native vegetation on part of the site. But that is a superficial comparison. What is required is a comparison of the substance of the development which was proposed and the development which was approved.

46. The same comment may be made in relation to other similarities which Mr Leggat noted. He pointed out that the development application sought to refrain from clearing those parts of the site identified by Dr Zoete as habitats 1 and 2 (being the open forest of the upper and lower slopes) and the development consent carried that concept through. Similarly, the basic intention for clearing on the site (that of pasture improvement) carried through from the development application to the development consent. Furthermore, the timing and duration sought (two years) was also carried though to the development consent. Similarly, the method of clearing proposed (by bulldozer and stick rake) was not prohibited. But these similarities (and several others of a like vein pointed out by Mr Leggat) are matters of detail, and they do not, in my opinion, go to the substance of the development which was sought and the development which was approved.

47. I find that the development which was the subject of the development consent is significantly different from the development which was the subject of the development application. Undoubtedly, the application areas were regarded by the applicant as the most suitable and appropriate having regard to his purposes and the advice of Dr Zoete, and, undoubtedly, the approved areas were regarded by the Minister as the most suitable and appropriate having regard to Mr Russell's report and the aims and objectives of the NVC Act. But those notions of suitability and appropriateness do not coincide, and the inevitable consequence has been that the development as sought is significantly different from the development as approved.

48. That finding has the consequence that it was not open to the Minister to grant the development consent in respect of the areas of the site and upon the conditions which he did. In the first place, the course that the Minister took was not open to him under s 80(1) (within part 4) of the EPA Act. That section provides as follows:

80(1) General A consent authority is to determine a development application by:

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

49. The reference in subclauses (a) and (b) to "the application" must be construed, in my opinion, as requiring a consent authority to exercise its powers under s 80(1) only in respect of the particular development application which was lodged. An applicant may amend or vary a development application in the course of its assessment by the consent authority (cl 48A of the Environmental Planning and Assessment Regulation 1994 expressly allows for such a possibility) but there is no power under the EPA Act or that Regulation for the consent authority of its own motion to make amendments or variations to a development application. What must be determined by the consent authority is the development application as lodged or as subsequently amended or varied by the applicant. The consent authority is not empowered to grant consent to a development which is significantly different from the development which was sought because, as is self-evident, that would not amount to a grant of consent to "the development application".

50. That conclusion is not disturbed by what is stipulated as the objects of the NVC Act. Relevantly, s 3 of the NVC Act states that its objects are:

(c) to protect native vegetation of high conservation value, and

(d) to improve the condition of existing native vegetation, and

(f) to prevent the inappropriate clearing of vegetation ...

51. In my opinion, the exercise of the Minister's powers as a consent authority under the NVC Act to grant consent or refuse consent to a development application must be undertaken for the purpose of these objectives, but that does not derogate from his obligation under s 15(1) to make "a determination, in accordance with Part 4 of the EPA Act, to grant development consent".

52. The development consent is framed in a rather peculiar way. On the first page, it sets out the proposed development as being "[c]learing and thinning of approximately 50 hectares of native vegetation", and under the heading "Determination" there is a ticked box providing that "consent granted subject to conditions described below". At first glance, it might be thought that the development consent was granted to the development as proposed, but that interpretation is dispelled, I think, by the opening words of the conditions of consent which appear on the next page, which are "[c]onsent is granted to clear approximately 30 hectares subject to the following conditions:". It is those conditions which underpin the significant differences which I have found between the development for which consent was sought, and the development for which consent was granted.

53. It is not open to a consent authority to grant consent upon conditions which significantly alter the development for which consent was sought. That principle was enunciated by Priestley JA in Mison and Ors v Randwick city Council and Ors (1991) 23 NSWLR 734 at 737 as follows:

In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application ... Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made.

54. Mr Leggat referred to s 80A(1) of the EPA Act as empowering a consent authority to impose conditions of the type which were imposed in this case. Section 80A(1) relevantly provides as follows:

80A (1) Conditions - generally A condition of development consent may be imposed if:

(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any subject matter referred to in section 79C(1) applicable to the development the subject of the consent, or

(g) it modifies details of the development the subject of the development application, or

55. I agree with the submission of Mr Larkin that these subsections of s 80A(1) do not assist the Minister's case. First s 80A(1)(c) must be taken, in my opinion, to permit a condition which requires the modification or cessation of existing development carried out on land, not the modification of the development proposed in the development application. Secondly, by virtue of referring to the subject matters of s 79C(1) (which include relevant environmental planning instruments, the likely impacts of the development, the suitability of the site for the development, the submissions of objectors and the public interest) s 80A(1)(f) is cast in wide terms. But it does not authorise conditions which so alter the development that it becomes significantly different from the development for which consent was sought. That is because s 80A(1)(f) refers only to those subject matters as are applicable "to the development the subject of the consent". In other words, s 80A(1)(f) presupposes the proposed development and authorises conditions which require work which relates to subject matters applicable to that development. Thirdly, s 80A(1)(g) refers to the modification of the "details" of the proposed development, rather than a modification of the substantial nature of the proposed development. Accordingly, s 80A(1)(c), (f) and (g) do not, in my opinion, derogate from the principle enunciated by Priestley JA in Mison v Randwick.

56. Of course, it is a matter of fact and degree, whether the development the subject of a development consent is in any particular case, by reason of the terms of that development consent or the conditions imposed by it, significantly different from the development for which consent was sought. It is not appropriate, therefore, to answer the preliminary questions of law hypothetically, and the answers to similar questions in other cases might, on their facts, be different. Nevertheless, on the facts of this case, I would, if it was necessary, answer the preliminary questions of law as follows:

1. Was it open to the Minister to grant development consent number TR9901 to clear a part of the area for which application was made?

2. Was it open to the Minister to grant development consent number TR9901 to clear native vegetation in areas different from the area for which application was made?

3. Was it open to the Minister to grant development consent number TR9901 to clear native vegetation in a manner different from that for which application was made?

4. Was it open to the Minister to grant development consent TR9901 to clear native vegetation of a type or types different from that in respect of which application was made?

Answer: In response to each question, no, because the development which is the subject of development consent number TR9901 is significantly different to the development for which application was made.

Did the consent granted by the Minister significantly alter the development in respect of which the application was made, or leave open the possibility that development carried out in accordance with the consent will be significantly different from the development for which application was made?

Is it open to the Court, on appeal, to uphold the consent granted by the Minister?

Answer: The question does not arise, because the jurisdiction of the Court in this class 1 appeal is to determine, on the merits and by way of rehearing, whether to grant or refuse the development application. The proceedings do not require the Court to either uphold or dismiss the consent granted by the Minister.

57. In accordance with the foregoing, the formal orders of the Court are:

(2) Development application No TR9901 for the clearing of native vegetation on part of lot 44 DP 753205 is determined by the refusal of consent.