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[2013] NSWCA 44
Court of Appeal (NSW)
2013-02-14
Ward JA, Preston CJ, Sheahan J
Original judgment source is linked above.
Judgment 1WARD JA: I agree with the reasons of Preston CJ of LEC and with the orders his Honour proposes. 2TOBIAS AJA: I agree with Preston CJ of LEC. 3PRESTON CJ OF LEC:
Nature of appeal and conclusion The Minister for Planning and Infrastructure gave approval (the Approval) under the former s 75O of the Environmental Planning and Assessment Act 1979 (the Act) for a concept plan (the concept plan) for a project involving a residential subdivision at Sandy Beach North near Coffs Harbour (the project). Coffs Harbour City Council (the Council) opposed the project. It instituted judicial review proceedings in the Land and Environment Court challenging the validity of the Approval on three grounds. Ground 1 was that the Minister did not have power to give the Approval or, alternatively, failed to take into account a mandatory relevant consideration, because there were no unexpired environmental assessment requirements with respect to the project at the time the environmental assessment was submitted to and accepted by the Director-General of Planning and Infrastructure (the Director-General). Ground 2 was that the terms of the Approval were so inconsistent, and its operation so uncertain, as to render it invalid. Ground 3 was that the Approval was given otherwise than to a legal entity and/or to an entity other than the proponent. 4Sheahan J rejected each of the three grounds of challenge but held that if he be wrong, in the exercise of his discretion he would decline relief. He therefore dismissed the Council's amended summons. 5The Council has appealed against the decision in respect of all three grounds as well as on the discretionary refusal of relief and on the basis that the primary judge failed to provide adequate reasons. 6I consider that the primary judge did not err in rejecting the Council's three grounds of challenge to the Approval, although my reasons differ in certain respects from those of his Honour. Having concluded that no statutory breach has been established, the question of discretionary relief does not therefore arise. As each of the Council's grounds of challenge are dealt with by this Court, it is also unnecessary to decide the Council's ground of appeal that the primary judge failed to provide adequate reasons. The Council's appeal should therefore be dismissed. 7Each of the three grounds of challenge concerned procedural steps in the process of approval by the Minister of the concept plan for the project under the former Part 3A of the Act. I will commence, therefore, with a summary of the statutory process for approval of a concept plan, and then provide a summary of the process of application and approval actually followed in this case. These summaries provide the legal and factual framework for determining the grounds of challenge on the appeal.
The process of approval of a concept plan 8Under the former Part 3A of the Act, a person proposing to carry out a project, referred to in the statute as the proponent, may wish to apply under Division 3 of Part 3A for the approval of the Minister to a concept plan for the project before or at the same time as applying for approval to carry out the project itself (s 75M(1) and (3)). The application for approval of a concept plan is lodged with the Director-General (s 75M(3)). However, the Minister must either authorise or require the proponent to apply for approval of a concept plan for the project (s 75M(1)). Section 75N applies ss 75F, 75H and 75I (which are in Division 2 of Part 3A) to an application for approval of a concept plan under Division 3. 9After an authorised or required application for concept plan approval is made, the Director-General notifies the proponent of the environmental assessment requirements (s 75F(3)). The Director-General may modify those requirements by further notice to the proponent (s 75F(3)). The environmental assessment requirements may require an environmental assessment to be prepared by or on behalf of the proponent in the form approved by the Director-General (s 75F(5)). The Director-General may also require the proponent to include in an environmental assessment a statement of the commitments the proponent is prepared to make for environmental management and mitigation measures on the site (s 75F(6)). 10The proponent is required to submit to the Director-General the environmental assessment for approval of the concept plan (s 75H(1)). If the Director-General considers that the environmental assessment does not adequately address the environmental assessment requirements, the Director-General may require the proponent to submit a revised environmental assessment to address the matters notified to the proponent as inadequate (s 75H(2)). 11The Director-General then decides whether to accept the environmental assessment (original or revised) (s 75H(3)). After it has been accepted by the Director-General, it is required to be made publicly available for at least 30 days (s 75H(3)). The public may make written submissions during the public exhibition period (s 75H(4)). 12The Director-General may then require the proponent to submit to the Director-General a response to the issues raised in the public submissions, a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and any revised statement of commitments (s 75H(6)). 13The Director-General next gives an environmental assessment report on the concept plan to the Minister for the purpose of the Minister's consideration of the application for approval of the concept plan (s 75I(1)). Amongst other matters, the Director-General's report is to include a copy of the proponent's environmental assessment and any preferred project report as well as a statement relating to compliance with the environmental assessment requirements with respect to the concept plan (s 75I(2)(a) and (g)). 14The Minister then decides under s 75O whether to give or refuse approval for the concept plan for the project. The power under s 75O is enlivened by the satisfaction of the two preconditions in s 75O(1): first, the proponent has made an application (under s 75M) for the approval of the Minister under Part 3A of a concept plan for the project and, secondly, the Director-General has given a report on the concept plan to the Minister (under s 75I). 15If the power is enlivened, the Minister is required to consider the three matters in s 75O(2), insofar as they are applicable to the concept plan for the project, in deciding whether or not to give approval for the concept plan. One of these matters is the Director-General's report on the concept plan and the reports and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report (s 75O(2)(a)). 16The Minister may also, but is not required to, take into account provisions of any environmental planning instrument that would not (because of s 75R) apply to the project if approved (s 75O(3)). Approval for a concept plan may be given with such modifications of the concept plan as the Minister may determine (s 75O(4)). 17When giving an approval for the concept plan for a project, the Minister may make other determinations under s 75P with respect to the concept plan for the project. Section 75P(1) provided: (1) When giving an approval for the concept plan for a project, the Minister may make any (or any combination) of the following determinations: (a) the Minister may determine the further environmental assessment requirements for approval to carry out the project or any particular stage of the project under this Part (in which case those requirements have effect for the purposes of Division 2), (b) the Minister may determine that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act (in which case the project or that stage of the project ceases to be a project to which this Part applies), (c) the Minister may determine that no further environmental assessment is required for the project or any particular stage of the project (in which case the Minister may, under section 75J, approve or disapprove of the carrying out of the project or that stage of the project without further application, environmental assessment or report under Division 2). 18If the Minister makes a determination under s 75P(1)(a) of further environmental assessment requirements for approval to carry out the project or any particular stage thereof, those requirements become environmental assessment requirements for the purposes of Division 2 of Part 3A with which any environmental assessment required for approval to carry out the project must comply (s 75P(1)(a) and s 75F(7)). 19If the Minister makes a determination under s 75P(1)(b), s 75P(2) provided, so far as is relevant: If the Minister determines that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, the following provisions apply: (c) any further environmental assessment of the project or that stage of the project under Part 4 or Part 5 is to be undertaken in accordance with requirements determined by the Minister when approving the concept plan (despite anything to the contrary in that Part).
The process of approval followed in this case 20On 19 January 2006, a planning consultancy, Planning Workshop Australia (PWA), on behalf of Sandy Shores Development Pty Ltd (Sandy Shores), prepared and lodged with the Director-General an application for concept plan approval. The application enclosed a preliminary environmental assessment dated January 2006. The Department of Planning (the Department) issued a receipt for the payment of the application fees to Sandy Shores as the proponent. 21On 11 October 2006, on the recommendation of the Department, the Minister authorised under s 75M(1) the lodgement of the application for approval of a concept plan for the project. 22On 20 October 2006, the Director-General notified PWA of the environmental assessment requirements for the concept plan for the project. Those requirements were contained in attachment 1 to the Director-General's letter of 20 October 2006. The attachment was in the form of a two column table, with the headings in the left hand column and the content relating to each heading in the right hand column. 23The first headings were descriptive of the application for concept plan approval (application number, project, location and proponent). The next two headings were descriptive of the timing of the issue and the expiry of the environmental assessment requirements, namely, Date issued 20 October 2006 Expiry date Two (2) years from the date of issue
The two year expiry date is critical to the Council's first ground of challenge. 24The next two headings set out the content of the environmental assessment requirements (general requirements and key issues). The final heading concerned the deemed refusal period. 25On 21 September 2007, a law firm, Deacons, submitted to the Director-General a "Concept Plan Application and Environmental Assessment dated September 2007" (the 2007 EA). The concept plan application and environmental assessment were combined. The executive summary noted that the applicant seeking approval was Sandy Shores. 26On 24 September 2007, a departmental file note on the Deacon's letter of 21 September 2007 recorded that a departmental officer had told a lawyer at Deacons that "they should have submitted a draft and met with us. She knows we are now reviewing the EA". 27On 10 October 2007, a departmental officer (Ray Lawlor) emailed PWA seeking to arrange a meeting "to discuss the draft Environmental Assessment (EA) submitted to the Department on 24 September 2007" and advised that: "[a]t this stage we have treated the EA only as a draft submission and have not undertaken a formal adequacy test pursuant to s 75H of the EP&A Act. It is not intended that the merits of the proposed subdivision will be discussed at the meeting but rather the formatting and general content of the EA. For this purpose I have attached some comments. While these are fairly detailed, many will relate to a proper editing of the document and a review against the Director-General's Requirements". The email attached five pages of comments on the 2007 EA under the major headings of "Editorial and General Issues" and "Director-General's Requirements" with the numbers of the comments referencing the Director-General's requirements' numbering under the headings of "General Requirements" and "Key Issues". 28The requested meeting between representatives of the Department and the proponent took place on 26 October 2007. According to PWA's notes of the meeting: Ray Lawlor (Department of Planning) opened the meeting indicating that application was being treated as a draft to provide the applicants with an opportunity to amend the report. The alternative was to treat the application formally, and write a letter advising that the application was inadequate in its current form. Those present then proceeded to selectively discuss the Department's comments dated October 2007. According to the Departmental file note of that meeting, the meeting was "to discuss outstanding issues with draft EA as per emailed advice ... of 10/10/07. Proponents are to review and amend the EA accordingly". 29On 28 February 2008, by letter to PWA, the Director-General issued what he described as "supplementary requirements" for the environmental assessment of the concept plan under s 75F(3) of the Act. 30On 24 September 2008, the Department responded by letter to an inquiry by PWA about the status of the Director-General's environmental assessment requirements (referred to in the correspondence as "DGRs") issued on 20 October 2006, following the two year expiry period recorded at [23] above. The Department stated: Please be advised that DGRs do not legally expire, however the Director-General may modify these requirements at any time. In this instance it is not considered necessary to further modify the DGRs. This is due to a number of factors, including:
39Definitions followed in Schedule 1. Three are of relevance: Concept Plan means the project as described in Schedule 1 and as modified by Schedule 2. Environmental means the Environmental Assessment entitled Concept Plan Application for Residential Subdivision Sandy Beach North, Pacific Highway Sandy Beach Volumes 1 and 2 prepared by Planning Workshop Australia and dated 17 March 2009. Assessment Proponent means Sydney NSW Property Consultants Pty Ltd or any party acting upon this approval. (emphasis added)
40Schedule 2 was divided into three parts: Part A - Administrative Conditions, Part B - Modifications to Concept Plan pursuant to s 75O(4) of the Act, and Part C - Further Environmental Assessment Requirements. 41In Part A, conditions A1 and A2 described the concept plan approved, which was less than the full plan for which approval had been sought. Condition A3 required the proponent to carry out the concept plan and all related future applications generally in accordance with the environmental assessment, preferred project report and addendum letter as well as the statement of commitments. 42Part C commenced with the chapeau: Pursuant to section 75P(2)(c) of the Act, the following environmental assessment requirements apply with respect to future stages of the project. (Emphasis added) Conditions C1 to C14 then set out the specific further environmental assessment requirements. 43Schedule 3 to the Approval comprised two plans. The proponent's statement of commitments referred to in the determination as being in Schedule 3, were not attached to the Approval although nothing turns on that omission.
Ground 1: Alleged expiry of environmental assessment requirements 44The Council submitted that the expiry date specified in the notification of the environmental assessment requirements (2 years from the date of their issue on 20 October 2006) was not only in itself an environmental assessment requirement but also had the effect, upon expiry of the two year period, of causing all of the environmental assessment requirements to cease to be operative and effective for the purpose of s 75F(3). The Council submitted that once the two year period expired: (a) any environmental assessment submitted by the proponent could not meet the description of being an environmental assessment required under Division 2 of Part 3A because there were no unexpired environmental assessment requirements which the environmental assessment could address; (b) the Director-General had no power under s 75H(3) to accept any such environmental assessment or to give a statement relating to compliance with environmental assessment requirements in the Director-General's report under s 75I(1) and (2)(g) because there were no unexpired requirements against which the Director-General could assess the environmental assessment's compliance; and (c) the Minister had no power to give approval for the concept plan for the project under s 75O(1) because the Director-General could not give a valid report on the project as required by s 75O(1)(b) which was a condition precedent to the Minister exercising the power to give approval. 45The primary judge found that: (a) the imposition of time limits was a power that could be incidental to the requirement that the proponent of a project must submit the environmental assessment to the Director-General (s 75H(1)) and also to those requirements upon the Director-General in s 75I, namely, the procurement and provision of the report to the Minister (at [143] of the judgment); (b) the 2007 EA was lodged within the two year period and although treated as a "draft" by the Department, was an environmental assessment as required by Part 3A and that pursuant to s 75H, the Director-General was entitled to request its revision (at [144] of the judgment); (c) the fact that an otherwise timely environmental assessment might have required revision did not make it a nullity or legally irrelevant. It could and was subject to revision, with the final revised environmental assessment being received on 17 March 2009 (at [144] of the judgment); and (d) the fact that the Act made provision for the Director-General to request modification of the environmental assessment signified that the process of approval was an evolving one that had variables that could not be subject to strict timeframes (at [145] of the judgment). 46The Council submitted that the primary judge erred in the reasoning summarised in (b) to (d) above. It contended that this Court should determine for itself the Council's ground of challenge. This was necessary because the nature of the proceedings in the Court below (judicial review) and of the appeal to this Court under s 58 of the Land and Environment Court Act 1979 meant that it was not sufficient for the Council to establish that the primary judge erred in his reasoning; it must also establish that his Honour's conclusion rejecting each ground of challenge was in error and that instead the ground of challenge should be upheld and the relief sought granted. 47I consider the Council's first ground of challenge fails for four reasons, some of which are different to those of the primary judge. 48First, the specified expiry date of two years was not itself an environmental assessment requirement under s 75F(2). The environmental assessment requirements for the concept plan application for the project were only those specified in the attachment to the letter of 20 October 2006 under the headings "General Requirements" and "Key Issues". The two year period was not, therefore, one of the "environmental assessment requirements" with which any environmental assessment submitted by the proponent under s 75H(1) had to comply. Nor was it a matter which the Director-General had to consider under s 75H(2) and (3) with respect to the adequacy of that assessment, or in respect of which the Director-General had to give a statement relating to the compliance of the environmental assessment under s 75I(2)(g) with the requirements. 49The expiry date specified was also legally ineffective to cause the notified environmental assessment requirements to cease to be operative and effective requirements under s 75F(2). As the Department noted in its letter of 24 September 2008, environmental assessment requirements notified under s 75F(3) did not legally expire although they could be modified by further notice to the proponent under s 75F(3). There was no express power in s 75F to fix a time period for environmental assessment requirements notified by the Director-General under s 75F(3) after the expiry of which the notified requirements ceased to be operative. 50There was power under s 75Z to make regulations including prescribing time limits for dealing with applications or other matters under Part 3A (see s 75Z(a)). Pursuant to this power, certain time limits were prescribed in the Environmental Planning and Assessment Regulation 2000 (the Regulation), including the time within which the Director-General was to notify the proponent of environmental assessment requirements with respect to a project or concept plan under s 75F(3) (28 days) and the time within which the Director-General was to accept the environmental assessment with respect to a project or concept plan under s 75H(3) or require the proponent to submit a revised environmental assessment under s 75H(2) (21 days): cl 8C(a) and (b) of the Regulation. The regulation-making power might have authorised the prescription of a time limit in the Regulation within which a proponent was required to submit to the Director-General under s 75H(1) the environmental assessment required under Division 2 of Part 3A. However, no such regulation was made. Hence, there was no time limit prescribed for submission of the environmental assessment required. 51I also consider the statute did not confer an ancillary power to fix a time period for the operation and effectiveness of the environmental assessment requirements notified under s 75F(3). It may be accepted that where a statute confers an express power, it is implicit that it also confers ancillary powers to do anything which is reasonably necessary to make the express grant of power effective: Nguyen v Minister for Health and Ageing [2002] FCA 1241 at [64]. But here, it was not reasonably necessary, in order to make effective the express power of the Director-General under s 75F(3) to notify environmental assessment requirements, to confer an ancillary power to impose a time limit for the operation and effectiveness of the notified environmental assessment requirements, given the power to modify those requirements under that sub-section to reflect changed circumstances. Indeed, the Council did not contend to the contrary. Rather, it was said that the imposition of a time limit was incidental to the requirement under s 75H(1) that the proponent submit the environmental assessment required or to the requirement under s 75I(1) and (2) that the Director-General submit a report to the Minister, including a statement relating to compliance with the requirements. However, neither was reasonably necessary to make the power under s 75F(2) effective and that is the test. Moreover, there was power under s 75Z(a) to make a regulation prescribing the time limit within which the proponent had to submit the environmental assessment required or the Director-General had to submit a report to the Minister. It was therefore not reasonably necessary to confer an ancillary power to prescribe such time limits which had been provided for in the regulation making power. 52The consequence of the foregoing is that the foundation for the Council's argument that the environmental assessment was invalid is removed. The notified environmental assessment requirements did not include as a requirement the two year period and their operative effect did not expire at the end of that period. An environmental assessment could, therefore, be submitted under 75H(1) and accepted by the Director-General under s 75H(3) after its expiry. 53Secondly, the proponent did submit an environmental assessment under s 75H(1) before the specified two year period expired when it lodged with the Department the concept plan application and the 2007 EA. The Department's conduct in treating that assessment as a "draft" (notwithstanding that it was not so described or submitted to the Director-General as a draft) and in deferring undertaking the assessment of adequacy under s 75F(2) and (3), did not alter the fact that the proponent submitted to the Director-General the environmental assessment required under Division 2 of Part 3A on 21 September 2007. The Department informally (as opposed to formally under s 75H(2)) required a review of the 2007 EA and the submission of a revised environmental assessment to address the matters notified to the proponent in the Department's email of 10 October 2007 and its attached comments and at the meeting on 26 October 2007. The Director-General modified the environmental assessment requirements by further notice to the proponent on 28 February 2008 (the so called supplementary requirements). The environmental assessment submitted on 22 December 2008 and again on 12 January 2009 was properly to be viewed as a revised environmental assessment, that is to say, a revision of the 2007 EA. 54The primary judge was therefore correct in finding that the Director-General had power to accept the revised environmental assessment under s 75H(3) as it was a revision of the assessment submitted within the specified two year period. 55Thirdly, even if one were to accept the Council's argument that the specified two year period was itself an environmental assessment requirement, the Director-General had the power to accept an environmental assessment submitted after expiry of that period. The power under s 75H(2) was facultative, not delimiting. The Director-General was empowered to require the proponent to submit a revised environmental assessment to address any matters the Director-General considered that the assessment did not adequately address. But he was not obliged to do so. The Director-General could decide to accept an environmental assessment even if it did not address the environmental assessment requirements. This is evidenced by the requirement in s 75I(2)(g) that the Director-General's report include a statement "relating to" compliance with the environmental assessment requirements. This envisaged that an environmental assessment may comply wholly, in part or not at all with the requirements. 56Hence, even if a specified time period for the expiration of the environmental assessment requirements could itself be a requirement, the Director-General had power to accept an environmental assessment that was not submitted within that time period and hence did not comply with that requirement. 57In this case, the Director-General must be taken to have accepted the 2009 EA notwithstanding that that assessment was submitted after the specified two year period had expired and hence may not have satisfied this environmental assessment requirement (if it be one). The Director-General's acceptance was expressed in the Department's letter of 24 September 2008 (which permitted the submission of the environmental assessment after the expiry of the two year period) and implicit in the Department's letter of 4 February 2009 accepting that the environmental assessment, noted as having been lodged on 12 January 2009, adequately addressed the Director-General's environmental assessment requirements issued on 20 October 2006 as amended on 28 February 2008. Alternatively, by the same conduct, the Director-General waived compliance with the specified two year period. Either way, the environmental assessment was able to be submitted to and accepted by the Director-General, notwithstanding the expiry of the two year period. 58Fourthly, even if there were to be a breach of the time limit specified in the notification of the environmental assessment requirements, it was an administratively imposed requirement, not one imposed by statute or regulation. No legislative intention can be gleaned that the submission of an environmental assessment in breach of such an administrative time requirement should lead to invalidity of any subsequent approval given under s 75O (applying Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91] and [93]). 59The Council's alternative argument that the Minister failed to have regard to a mandatory relevant matter, namely, that the notified environmental assessment requirements had expired at the time the 2009 EA was submitted, fails for similar reasons: the environmental assessment requirements had not expired, the 2007 EA was submitted before the expiry of the time period, and the Director-General had the power to accept an environmental assessment even if it were to have been submitted after the expiry of the time period. 60Furthermore, the Minister was not bound either by the express terms of s 75O or by implication from the subject matter, scope and purpose of the Act, to consider the matter as stated by the Council. Section 75O fixed two preconditions in s 75O(1) that had to be satisfied and three relevant matters in s 75O(2) that the Minister was bound to consider in the exercise of the power under s 75O(1). The Council's stated matter is not one of these preconditions or matters. The statutory scheme did not require implication of the matter as a relevant matter to be considered, for the reasons given earlier. 61For these alternative reasons, the Council's first ground of challenge, in both of its forms, to the Approval fails and the primary judge was correct in rejecting it.
Ground 2: Alleged unintelligibility of the Approval 62The Council's second ground of challenge concerns the inconsistency between the terms of the determinations made by the Minister stated in the Approval and the references to the statutory provisions pursuant to which those determinations were said to have been made and which I have emphasised at [37] and [42] above. 63Relevantly, the Minister determined two things. First, in para (a) of the Approval, he determined to approve the concept plan subject to the terms of approval in Schedule 2. Secondly, in para (b) he determined that "approval to carry out the project shall be subject to Part 3A of the Act". In Part C of Schedule 2 the Minister determined further environmental assessment requirements to apply with respect to future stages of the project. 64The Approval further stated, first, in para (b) that the Minister's determination that the approval to carry out the project be subject to Part 3A was made pursuant to s 75P(1)(b) of the Act and, secondly, in the chapeau to Part C, that the further environmental assessment requirements were made pursuant to s 75P(2)(c). However, those provisions would only support determinations to carry out the project and any further environmental assessment requirements had the Minister determined that approval to carry out the project was to be subject to the provisions of Part 4 or Part 5, rather than Part 3A. This error in identifying the correct statutory sources of power was said by the Council to constitute uncertainty, confusion and to involve a fundamental inconsistency between different parts of the Approval. 65The Council submitted that these failings of the Approval could not be resolved by ordinary rules of construction. The alleged inconsistencies rendered the Approval uncertain and unintelligible or not possible to follow: see Whittaker v Comcare (1998) 86 FCR 532 at 544. It was therefore outside the range of approvals that s 75O(1) authorised and hence was invalid. 66The primary judge found that the references in the Approval to s 75P(1)(b) and s 75P(2)(c) were errors of a clerical character; the references should be read instead as references to the relevant and applicable provisions in s 75P(1)(a) or the section generally; and that even if the Approval were to be uncertain by reason of the erroneous references, it had not been shown to be so uncertain as to be outside the power authorising its grant (see [168] -[169] of the judgment). 67The Council submitted that the primary judge's reasoning was erroneous and that this Court should determine for itself the Council's second ground of challenge. I would reject the Council's argument for different reasons to those of the primary judge. 68It is well settled that courts attempt to avoid ambiguity or uncertainty by adopting a construction which gives statutory instruments and decisions practical effect: Westfield Management Pty Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36]-[40]; Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 at [36]-[66]. It is only if the ambiguity and uncertainty cannot be resolved by a proper construction of the statutory instrument or decision that the court needs to deal with the question of whether such residual ambiguity or uncertainty causes the statutory instrument or decision to be outside the power to make it. 69In this case, the Approval can be construed so as to avoid the asserted uncertainty and give it practical effect. The terms of the Minister's actual determination stated in the Approval are intelligible and are able to be supported by a source of power. 70The Minister stated in para (b) of the Approval that he had determined "that approval to carry out the project shall be subject to Part 3A of the Act" and in para (a) that the approval for the concept plan was "subject to the terms of approval ... in Schedule 2". In the chapeau to Part C of Schedule 2 he in effect determined that "the following environmental assessment requirements apply with respect to future stages of the project". These statements are understandable as being descriptive of the Minister, when giving approval for the concept plan for the project, having determined the further environmental assessment requirements for approval to carry out the project under Part 3A. This was a determination under s 75P(1)(a). Such a determination was within the power of the Minister to make when giving approval for the concept plan for the project. 71This understanding of the determination made by the Minister, based on the terms of the determination stated in the Approval, is not displaced by the mistaken references to the statutory provisions said to be the source of the power to make the determinations. This is so for two reasons. 72First, a citation of the source of power said to have been exercised in making a determination is not itself part of the determination. Hence, an erroneous reference to a statutory provision pursuant to which it is said that a determination is made but which is not part of that determination cannot to be used to contradict or limit the terms of the determination which is otherwise unambiguous on its face and which is otherwise supported by a different statutory provision (see, by analogy, Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244 at 249 to the effect that an application triggering the exercise of power to give an approval is not be used to qualify or contradict the terms of the approval). 73Secondly, it is well settled that a mistake in the source of power to make a determination works no invalidity. Validity of the determination depends simply on whether a relevant power existed at the relevant time: Brown v West (1998) 169 CLR 195 at 203; Johns v Australian Securities Commission (1993) 178 CLR 408 at 426; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 85. Thus, as s 75P(1)(a) conferred the source of power to sustain the determination made by the Minister in Part C of Schedule 2 to the Approval, it matters not that the Minister mistakenly thought and stated in the Approval that s 75P(1)(b) and s 75P(2)(c) were the sources of power. Given this legal position, the mistaken citation of the source of power said to have been exercised to make the relevant determinations in the Approval cannot be used to contradict their otherwise clear terms. 74In essence, the determinations the validity of which was challenged were in their terms clear and certain. The erroneous references to the statutory provisions pursuant to which they were purportedly made was surplusage and did not reflect upon the certainty of what the Minister in fact determined. 75Of course, the determination in para (b) of the Approval was in any event unnecessary. Absent the Minister determining pursuant to s 75P(1)(b) that other provisions of the Act were to apply to the carrying out of the project or any particular stage thereof (in which event Part 3A would cease to apply thereto), the project continued to be subject to that Part. The determination contained in para (b) was therefore no more than declaratory of the legal position. However, its practical utility was to make it clear to any reader of the Approval that Part 3A would apply to the future carrying out of the project. 76The primary judge therefore did not err in rejecting the Council's second ground of challenge.
Ground 3: Alleged error in description of proponent in concept approval 77The Council's third ground of challenge concerns the description of the proponent in the Approval. Schedule 1 to the Approval identified the proponent as "Sydney NSW Property Consultants Pty Ltd". However, the Definitions in Schedule 1 defined "Proponent" to mean "Sydney NSW Property Consultants Pty Ltd or any party acting upon this approval". At the hearing in the court below, it was common ground that there was no corporation by that name. At best, Sydney NSW Property Consultants was a name used by one of the project managers, Mr Bill Yassine. 78The Council submitted that it was necessary, for a valid concept plan approval to be given under s 75O(1), for there to be a legal entity identified as the proponent in the concept approval. The Council accepted that s 75O(1) does not expressly require the Minister, in giving approval for the concept plan for the project, to identify the proponent. Nevertheless, the Council submitted that such a requirement should be implied from the following provisions of Part 3A: a. the right to apply for approval (s 75E(1)), be notified of DGRs (s 75F), and the obligation to prepare and submit an Environmental Assessment (s 75H) are all directed to 'the proponent'; b. both ss 75O(1) and 75J(1), in conferring power to give project approval and concept plan approval, condition the power on 'the proponent' making an application for approval; c. the identity of the proponent affects the range of matters to which the Minister must have regard under ss 75O(2)(b) and s 75J(2)(b) (where the proponent is a public authority, the Minister must have regard to additional matters); d. the proponent is the person who, if it is made a condition of approval, is to give a 'statement of commitments' (see s 75O(5) and s 75J(5)). Importantly, then, it is the proponent who makes the commitments that may influence the Minister in making the relevant approval decision. The identity of the proponent and its expected ability to fulfil the commitments may be of some importance; and e. the 'proponent' is given a right to appeal concept plan approvals and project plan approvals under ss 75K and 75Q. (at [52] of the Appellant's submissions). 79The primary judge found that Sandy Shores was the proponent and that various persons and entities acted as its agents, including Bill Yassine, sometimes trading as Sydney NSW Property Consultants. The identification of an agent, rather than the principal, as the proponent in the Approval did not lead to its invalidity (at [180]-[181] accepting the second respondent's submissions at [177]-[178] of the judgment). 80The Council submitted that the primary judge's reasons involved error and this Court should determine for itself the Council's third ground of challenge. 81I consider the Council's argument should be rejected, although for different reasons to those of the primary judge. 82The Council was correct in stating that its third ground turned on whether, as a matter of statutory construction, it could be said that the legislature intended that the identification of a legal entity as the proponent should be a precondition to the giving of a valid concept plan approval for the project under s 75O(1). In my view, however, the legislature did not so intend. 83Section 75O(1) in express terms established the only two preconditions that had to be satisfied to enliven the Minister's power to give or refuse approval for a concept plan for a project and neither of these required the Minister to identify a legal entity as a proponent in the approval. 84The precondition in s 75O(1)(a) is that the proponent makes an application for the approval of a concept plan for the project. This is the application that the Minister authorises or requires the proponent to make under s 75M(1). The proponent of a project, referred to in s 75O(1)(a) and s 75M(1), is defined in s 75A to mean the person proposing to carry out development compromising all or any part of the project, and includes any person certified by the Minister to be the proponent. 85The focus of s 75O(1)(a) is on the making of the application and not on the giving of the approval. The precondition is that there must be an application made by a proponent for approval of a concept plan for a project. The Minister does not "give" an approval to a "proponent" but to a concept plan the subject of an application. 86In this case, the precondition in s 75O(1)(a) was satisfied. The person proposing to carry out the project, Sandy Shores, had made an application for the approval of the Minister under Part 3A of a concept plan for the project. The application lodged with the Director-General was made by PWA on behalf of Sandy Shores. The Director-General issued a receipt for the application fees to Sandy Shores: see [20] above. 87In circumstances where the legislature has expressly specified in the statutory provision conveying the power to give an approval the preconditions that must be satisfied in order for the Minister to exercise the power, there is no warrant for the Court to construe the provision as also requiring, by implication, an additional precondition that the Minister identify a legal entity as a "proponent". Further, none of the other statutory provisions relied upon by the Council, set forth earlier, supports the implication of a precondition that the Minister identify such an entity. The requirements for implication, that it be necessary, obvious, clear and consistent with the express terms of the statutory provision, are not satisfied (see, by analogy, Macquarie Generation v Hodgson [2011] NSWCA 424; (2011) 186 LGERA 311 at 320 [63]). 88In summary, s 75O(1) neither expressly nor by implication requires as a precondition to the exercise by the Minister of his powers to give an approval for the concept plan for a project, the identification of a legal entity as a "proponent". Hence, the misdescription in the Approval of the proponent as "Sydney NSW Property Consultants Pty Ltd" works no invalidity. 89The primary judge therefore did not err in his conclusion to reject the Council's third ground of challenge.
Discretionary refusal 90In light of the conclusion that the primary judge was correct in rejecting each of the Council's grounds of challenge to the concept approval, the question of discretion to refuse relief, had there been any breach, does not arise for consideration.
Inadequate reasons 91The Council also appealed on the basis that the primary judge erred in not providing adequate reasons for rejecting the Council's grounds of challenge. The Council noted, however, that if an appeal on the ground of failure to give reasons were to be allowed, this Court had a discretion whether to remit the proceeding to the primary judge for delivery of adequate reasons, order a new trial, or determine the matter itself. The Council submitted that in this case this Court would follow the third option of determining the matter itself. 92In the result, this is the course I have adopted. I have determined each of the Council's grounds of challenge to the Approval on their merits. There is, therefore, no utility in deciding the Council's appeal ground that the primary judge erred in giving inadequate reasons.
Conclusion and proposed orders 93The Council's challenges to the primary judge's orders having failed, the appeal should be dismissed with costs. 94The formal orders I propose are:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2013
Coffs Harbour City Council
The Minister for Planning and Infrastructure
(1998) 169 CLR 195
(1993) 178 CLR 408
(2011) 186 LGERA 311
(1996) 91 LGERA 31
(1998) 194 CLR 355
(2008) 160 LGERA 20
(1998) 86 FCR 532
(1996) 92 LGERA 244