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.