The Evidence
29It is necessary to examine closely now the nature and contents of all the documents before the court, and the chronology of events which may be relevant to the Council's challenge.
30Representatives of the second respondent met with departmental officers on 11 October 2005 ( tab 1 ) to discuss the project. The subject site was clearly identified as comprising 49ha of land at Sandy Beach, of which 29.5ha was zoned Residential 2A, 8.7ha Residential Tourist 2E, and 10.8ha Enviro-Protection or Scenic 7A and 7B. The development concept explored was in four precincts, with 250-300 residential lots ranging in size from 400m 2 to 2000m 2 , with development restricted to the flatter areas of the site (with minimal tree cover), and 50% of the site to be preserved as open space.
31On 4 November 2005 , Charles Hill of Planning Workshop Australia (' PWA '), wrote to the then Deputy Director-General (Mr Haddad) following up on that discussion ( tab 2 ). A concept plan, prepared by a firm of architects " in conjunction with [PWA] on behalf of Sandy Shores Development Pty Ltd ", was attached, and the Department was respectfully requested to consider the proposal as a project to which Part 3A might be applied.
32In a departmental minute, signed off by Mr Haddad as Director-General (hereafter ' DG ') on 25 November 2005 ( tab 3 ), the opinion expressed on behalf of the Minister was that the development described was appropriate for Part 3A. The departmental assessment records that PWA had written to the Department " on behalf of Sandy Shores Development Pty Ltd (the applicant )", and that the proposed development is " development of a kind that is described in clause 1(1)(i) Schedule 2" of the 2005 SEPP and , "is a project to which Part 3A applies", as it falls "within the coastal zone" and "involves a subdivision of land in a residential zone into more than 25 lots" (i.e. 300). The minute notes that the Minister delegated his function to form opinions under cl 6 of the 2005 SEPP to the DG, pursuant to a delegation instrument dated 31 October 2005. The " Minister's opinion ", was formally recorded ( tab 4 ), referring simply to " a proposal ... generally as described in a letter dated 4 November 2005 " from PWA to the Department.
33The Department wrote to Mr Hill on 13 December 2005 ( tab 5 ), advising of the DG's decision of 25 November 2005 that Part 3A would apply to the project. The letter invited PWA to apply for the approval of the Minister to carry out the project. Mr Hill, having indicated that PWA would submit a concept plan, was informed by this letter that the Minister would consider that request after the application has been lodged, clearly stating the intention to submit a concept plan. The preliminary EA should address all the information concerning/required for concept plans.
34Mr Hill responded to Mr Haddad on 18 January 2006 ( tab 5A ), enclosing a completed major projects application form ( tab 6 ) signed by Charles Hill as " proponent ", on behalf of the " company/organisation/agency " nominated as " proponent ", PWA. It was accompanied by a " preliminary assessment ", said to be dated January 2006, and to have " been prepared having regard to the guidelines provided " ( tab 7 ). The application was received by the department on 19 January 2006 ( tab 6 , fol 9). A fee of $775 was paid and receipted ( tab 9 ). The cheque (at fol 8 in tab 5A) was drawn by Sandy Shores Developments Pty Ltd. The receipt refers to the proponent/contributor as Sandy Shores Development Pty Ltd, and the tax invoice correctly refers to the author of the cheque as Sandy Shores Developments Pty Ltd. The Owner's Consent section is signed by " J C Oliver " (fol 11). The estimated value of the project is $12M (fol 11). The " preliminary assessment " is stated to be for " Sandy Beach North Residential Development ", and to have been prepared by PWA specifically for " Sandy Shores Development Pty Ltd " (see fols 13-14). In a broadly expressed letter on the company's letterhead, dated 25 January 2006 ( tab 8 ), Mr John Oliver was nominated as its " appointed agent/representative ". He is described elsewhere (tab 14, fol 70) as the " project manager ".
35Tab 10 is a Ministerial briefing paper regarding five major project applications and three concept plan approvals, including " Sandy Beach North " (for 295 lots). It was prepared by the Department on or before 27 September 2006 and noted/endorsed by Mr Haddad and Minister Sartor on 3 and 11 October 2006 respectively. The relevant authority was granted for the lodgement of concept plans under s 75M(1). At folio 53 (par 5.16) it was noted that the subject site was purchased by Mrs C M Hoskings and Ms L J Darby, not the second respondent, on 17 September 2004 , but the " proponent " is identified as " Planning Workshop for Sandy Shores Development ". It is noted that the site is " low lying, subject to flooding and contains EECs ".
36The Department wrote to Mr Hill on 20 October 2006 ( tab 11 ), enclosing the DGRs in respect of " your application for Concept Plan approval ". The DGRs had been prepared on the basis of the information so far provided, and pursuant to s 75F(3). The DGRs (fol 65 of tab 11) are dated 20 October 2006, they identify the "proponent " as " Planning Workshop Australia ", and their expiry date is nominated as " two (2) years from the date of issue " (which would be 20 October 2008). The key issues are identified over some three pages, and the deemed refusal period is notified (fol 68) as " 60 days ". Attachment 2 sets out " plans and documents " to accompany the project approval application, and attachment 3 some " technical and policy guidelines ".
37The law firm then known as Deacons wrote to the DG on 21 September 2007 ( tab 12 ), enclosing what it said was the concept plan application, and an EA dated September 2007. A cheque was enclosed in the sum of $22,000 by way of lodgement fee, calculated on the basis of the number of hectares to be subdivided.
38Nineteen appendices to that EA as submitted in September 2007 are listed in a table (added to the bundle before the court as fol 65A), and a CD (not before the court) was apparently also provided.
39The letter was noted as " received" on 24 September 2007 , and there is a handwritten note on it indicating that someone in the Department spoke on that day with the Deacons partner and " told her that they should have submitted a draft ... (unintelligible). She knows we are now reviewing the EA ".
40These documents (at tab 12) were relied upon by all three respondents as the relevant assessment for the purposes of asserting its timely submission, contrary to the first ground of the Council's challenge. The respondents submit that September 2007 falls well within the nominated expiry date of the DGRs (20 October 2008).
41Following the addition to the bundle of fol 65A:
(1) Exhibit S1 was tendered by the second respondent, being a full copy of the application/assessment document plus two large binders containing all the appendices (T29.6.11, p28, L46), and
(2) Exhibit C2 was tendered by the applicant Council, being photocopies of the departmental file covers on the two binders of appendices, endorsed in handwriting " draft EA ". (Dr Griffiths, senior counsel for the Council, said those copies were " sufficient for our purposes " (T29.6.11, p29, L3)).
42The application/assessment in Exhibit S1 makes clear from the outset (see the cover page, the certification and the executive summary) that it was prepared, and, one can assume, submitted, on behalf of Sandy Shores Development Pty Ltd. It says (p3) that the 49ha site will be developed " in four precincts " - 20.8ha of " built form ", with 20.2ha " retained for wetland [etc] ... designated as an Environmental Protection Area ", and 8ha retained as a " buffer area " of " vegetated Open Space " and emergency access between the two larger precincts.
43An email sent by the Department's contract planner, Ray Lawlor, to Mr Hill and others on 10 October 2007 ( tab 13 ), suggested a meeting to " discuss the draft EA " submitted on 24 September 2007. It goes on to comment:
...at this stage we have treated the EA only as a draft submission and have not undertaken a formal adequacy test pursuant to section 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. Also there are still application fees outstanding related to clause 245D of the EP&A Regulation and the subdivision construction works which we can discuss at the meeting.
44There is a handwritten endorsement on the email at tab 13, noting that the proposed meeting was held on 26 October 2007 . The attachment to the email comprised four pages of comments, and Council relies on this email as clearly indicating that the Department's position, at least at that time, was that only a draft, and not an appropriate assessment document, had been submitted in September 2007.
45Tab 14 contains PWA's and the Department's notes of the meeting held on 26 October 2007. The Department was represented by Messrs Lawlor and Tomkins, and the unnamed " applicant " by Messrs Oliver, Holland, Thomas, Power and Hill. Again, Mr Lawlor stated that the application " was being treated as a draft to provide the applicants with an opportunity to amend the report ". It was noted that the alternative was to treat the application formally and write a letter advising that it was inadequate in its current form. The meeting discussed the Department's comments contained in the email. The notes (fols 66-69) indicate an extensive discussion about all aspects of the matter. Mr Power was noted to have some concerns about the adequacy and accuracy of the " Sainty report ", and did not think " Sainty " should be involved.
46Sainty & Associates were independent environmental consultants engaged by the Department, following site inspections with Council on 28 June 2006, to look at this and other similar proposals on environmentally sensitive coastal land in the Coffs Harbour local government area. Sainty reported in September 2006 that development areas should be restricted to 8ha of the 38ha currently zoned residential. The Sainty engagement and report were reported on in some detail in the Ministerial briefing paper (see [35] above, and tab 10, fols 48-51).
47I note here the provisions of s 75H and s 75N (see [17] and [20] above). Section 75H deals with " adequacy ", and s 75N applies s 75H to concept plans. The DG has to " accept " an applicant's EA and put it on exhibition. Clearly, the date of " acceptanc e" of the EA by the DG is very significant. As Dr Griffiths says (T28.6.11, p11, LL29-31) "the [Department has] been sensibly cautious because it doesn't want to engage the obligation to exhibit where you didn't have a EA in the proper sense ".
48A further meeting took place between PWA, the company, and the Department, to discuss the 2007 EA, on 29 January 2008 ( tab 15 ).
49Tab 16 contains a further background note or departmental briefing paper, prepared for the DG and dated 13 February 2008 . It notes:
...an early draft of the Environmental Assessment was received by the Department in September 2007. Advice was provided to the proponent identifying a number of inadequacies with the documentation including insufficient detail on the subdivision design and layout, coastal hazards, flora and fauna, Aboriginal heritage, traffic management and infrastructure. The document also contained numerous spelling/typographical errors. The Department has held discussions with the proponent in relation to these matters, most recently at a meeting on 29 January 2008.
50The document at tab 16 goes on to note that the Department expected a revised EA to be submitted by mid to late February 2008 , reflecting the time taken for the proponent to respond to the matters raised by the Department, as well as completing the necessary community consultation procedures, with respect to Aboriginal heritage assessment, in accordance with Department of Environment and Climate Change guidelines.
51In the background section of the document at tab 16 (at fol 72), the proponent is nominated as " Planning Workshop on behalf of Sandy Shores Development Pty Ltd ". The area of the site and its zonings were noted, as were environmental and ecological constraints, including Endangered Ecological Communities ('EEC's) and flooding concerns. In February and March 2006 , Council had exhibited a draft Local Environmental Plan ('LEP') proposing to rezone most of the site Environmental Protection 7A , which, in conjunction with Development Control Plan ('DCP') controls, " would restrict development of the site to a maximum of 35 dwellings ". Council had deferred finalisation of the rezoning pending the decision on the subject Part 3A application, but considers the Sandy Shores proposal, whatever the final number of lots proposed (140 to 295), to be " unacceptably large and out of kilter with the draft rezoning " (T28.6.11, p12, LL24-25).
52It is noted that the draft EA provided for site development beyond the potential areas identified by the Sainty report, including the western part of the site, which is identified as an EEC. Sainty had been asked to review, on behalf of the Department, the proponent's ecological reports and its justifications for variations from the identified potential development areas, and was expected to report by late February 2008.
53The report concludes with a notation that the DGRs " (issued on 20 October 2006) required the subdivision to be consistent with the areas of development potential identified within the Sainty Report or otherwise provide suitable justification and sound technical arguments for any departure ". Folios 73-75 include plans of the developable area recommended by Sainty, and the development areas proposed by the proponent.
54On or about 20 February 2008 a draft letter was prepared in the Department, but not sent ( tab 15 ). It was to go to Mr Power at PWA from Heather Warton, Director Coastal Assessments in the Department, with a copy to Mr Oliver. It referred to the meeting held on 29 January 2008, attended by Mr Power and " the proponents, John Oliver and Peter Darby for Sandy Shores Pty Ltd ". It noted that the DG was considering revising the DGRs to pick up matters such as climate change impacts. (I note here that the DG has statutory power to modify them during the course of their life). The handwritten endorsement on the draft letter stated " not sent. Advice to be incorporated as amended/supplementary DGRs" .
55The Department's Executive Director Major Project Assessments, Mr Wilson, wrote to Mr Power of PWA on 28 February 2008 ( tab 17 ). A copy of the letter is footnoted as being sent to " John Oliver, Sandy Shores Development Pty Ltd" . It is not really similar to the draft letter at folio 71 in tab 15. It noted (fol 75) that potential climate change and sea level rise impacts are of critical importance to the assessment of the project and the concept plan. Since the DGRs were issued, further information had been released, and an assessment of climate change impacts to the year 2100 is required in relation to this proposal. The DG had, therefore, issued " supplementary " DGRs, and a copy was attached to the letter. Assuming folio 76 is the extent of the requirements, there is only one supplementary matter raised, being added to the requirements as par 7.7, in the following terms:
A risk management assessment of climate change impacts to the year 2100, is to be undertaken using the latest available information from the International Panel on Climate change (IPCC), Department of Environment and Climate Change (DECC) and the CSIRO. This should include sensitivity analyses for low level, mid range and high level ocean impacts as set out in relevant DECC Guideline (Floodplain Risk Management Guideline: Practical Consideration of Climate Change, 2007).
56Dr Griffiths noted at the hearing (T28.6.11, p11, LL35-40), that the " supplementary " DGRs were issued both during the currency of the original DGRs, and some eight months prior to their expiry. In his written submissions (par 16) he said:
There is no power to issue 'supplementary' DGRs in the EP&A Act. Rather sub-ss 75F(2) and (3) requires the Director-General to prepare environmental assessment requirements '[w]hen an application is made for the Minister's approval for a project' and 'notify the proponent of the environmental assessment requirements'. Sub-cl (3) provides that the Director-General 'may modify those requirements by further notice to the proponent' (emphasis added). This was apparently the power relied upon to 'issue' the 'supplementary requirements'. The so-called 'supplementary requirements' took effect as a modification of the DGRs rather than a fresh issue of additional DGRs .
57Tab 18 (fol 76A) records that Mr Power, sometime prior to 24 September 2008 , when the two-year life of the original requirements would appear to be close to expiry, had made a "recent enquiry about the status " of the DGRs. A Departmental officer, Joanna Bakopanos, responded 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". She went on to provide a number of " factors " for that conclusion, including the draft EA submitted in September 2007, the preliminary advice provided to him by the Department about it, the supplementary DGRs issued on 28 February 2008, and Mr Power's advice that he expected a revised EA to be " submitted shortly ". Ms Bakopanos urged Mr Power to ensure that the revised EA is prepared having regard to " recent policy guidelines, for example Planning for Bushfire Protection 2006 ". She attached a copy of the most recent list of guidelines which she thought may be of assistance. (No list is included in the exhibit).
58Dr Griffiths submits that the advice Bakopanos gave Power, that the DGRs do not expire, was wrong, as a matter of law. It is a question squarely before the court in the present matter. Dr Griffiths acknowledged that the DG can modify his requirements - he is expressly empowered to do so under s75F(3) - but that the modification must be made only during the currency of the requirements sought to be modified. Section 75N picks up s 75F (see T28.6.11, pp12-13).
59The two year nominated life of the original DGRs expired on 20 October 2008 .
60In late 2008, PWA was incorporated into Worley Parsons Resources & Energy. Tab 19 contains (fol 77) a letter dated 22 December 2008 which Mr Power, as the principal heritage and statutory planner of Worley Parsons, wrote to the major project assessment section of the Department, lodging a copy of the EA for the concept plan application for the Sandy Shores Project at Sandy Beach. The covering letter clearly nominated the " applicant " as " Sandy Shores Development Pty Ltd ". Mr Power asked the Department to get back to him " at the completion of the Director-General's adequacy assessment of the [EA] under s75H ". Mr Lawlor in the Department confirmed the receipt of that assessment on 22 December 2008 in these terms:
I confirm receipt of the Environmental Assessment for the Concept Plan Application - Residential Subdivision for initial submission prior to submission for an 'adequacy test' ...
6122 December 2008 was two months after the date on which the DGRs are said to have expired (20 October 2008).
62On or about 9 or 12 January 2009 a revised EA was submitted to the Department ( tab 20 ).
63Mr Wilson wrote to Mr Power on 4 February 2009 ( tab 21 ), referring to lodgement of the EA " on 12 January 2009 ". (It would appear that this letter and schedule of matters were then addressed two weeks before the document exhibited at tab 20 was produced and exhibited).The letter advises that the EA document so submitted, when reviewed against the requirements, passes the " adequacy test ". The letter goes on:
Notwithstanding this, the attachment to this letter lists a number of matters regarding the EA. The proponent will need to address outstanding editorial issues before exhibition of the EA can proceed and also ensure Lot 497 ... is included in the concept plan description. The proponent may also wish to address the other issues listed in the attachment in finalising the EA.
In assessing the adequacy of the EA the Department has also relied upon advice from the Department of Environmental (sic) and Climate Change (DECC), a copy of which is enclosed for your information. Issues raised by the DECC are primarily merit considerations, which the proponent may choose to address at this stage as it is probable that they will again be raised following the exhibition of the EA.
The EA was also referred to the Roads and Traffic Authority (RTA). No comments have been received at this stage, but will be forwarded separately to you when received. Any additional comments would not form part of this formal adequacy assessment.
64The attachment to the letter was a schedule of some four pages (fols 213-216), listing issues and requirements. One is a need to reframe the draft statement of commitments for a range of reasons. A list of editorial issues appears on folio 216. In summary, whatever was submitted on 12 January had been accepted as adequate for the purposes of s 75H, subject to editorial changes that will need to be made " before it will be exhibited " (T28.6.11, p15, L22).
65The EA in tab 20 , submitted by PWA on behalf of its " client ", Sandy Shores Development Pty Ltd (fols 78-80 and 87), shows (at folio 79) its final revision date as 20 February 2009 . The previous " final " date was 22 December 2008 , and the certification by Mr Power and two other PWA officers, is dated 17 March 2009 , which is the date imprinted by the word processor on the foot of every page of the document (being fols 80-210). Mr Tomasetti, senior counsel for the second respondent, acknowledged that the tendered document was the " final revised ".
66The conclusion to the document is a full page at tab 20, folio 210. The conclusion includes the following (emphasis in document):
The Concept Plan Application is consistent with the intentions of the State and Local Government planning framework for the Mid North Coast and will assist in supporting the economic growth and development of Coffs Harbour. The site is within the area identified in the State Government Mid North Coast Strategy as being appropriate for residential development.
The proposal is consistent with the intentions of Coffs Harbour City Council's Interim Settlement Strategy, and is consistent with the aims and objects of the Coffs Harbour Local Environmental Plan 2000 ['the Coffs Harbour LEP'] .
67The conclusion goes on to note that as a Part 3A project, compliance with the LEP is not required, but, " [n]onetheless, the Concept Plan application complies with the aims and objectives of the LEP ". Half the site will be retained for environmental protection and open space resulting in a restoration of the presently degraded environment. The identified potential environmental impacts are able to be effectively ameliorated by the mitigation measures recommended within the various consultant reports that have informed this EA and are incorporated into the draft statement of commitments. " This EA concludes that the proposed Concept Plan is not likely to result in any significant adverse impacts ". The final paragraph of the conclusion of the report says " [i]t is therefore recommended that the application is determined by the granting of concept plan approval, and approval under Section 75P(1)(c) of the EP&A Act ".
68Dr Griffiths said that the document placed in tab 20 of the bundle " was copied from the Department of Planning's website. This is the environmental assessment which was publicly exhibited " (T28.6.11, p14, LL22-24). He drew attention to folio 91 where the document notes that " this EA has been prepared to accompany the Concept Plan Application " pursuant to s75H, and then says " The EA has been prepared in accordance with Section 75F of the EP&A Act. It addressed the Director General's Requirements issued on 20 October 2006 and subsequent requirements issued 28 February 2008 relating to climate change considerations .... He deduces from the annotations that " this appears to be the final environmental assessment lodged on behalf of Sandy Shores Development Pty Limited and that the final environmental assessment doesn't come in until on or after 17 March 2009 " (T28.6.11, p13, LL33-36).
69Dr Griffiths points out that concept plan approval occurs under s 75P(1)(b), whereas the proponent in the publicly exhibited document seeks an approval under s 75P(1)(c). He submits that this is an important distinction. Section 75O is the source of the power to approve a concept plan where the conditions in s 75O are met, and s 75P is an adjunct provision providing, in effect, that when giving an approval to the concept plan under s 75O, the Minister may make any, or any combination of, the determinations at (a), (b) and (c). As Dr Griffiths says (at T28.6.11, p15, LL5-8):
...you go to Pt 3A for the future, you go to Pt 4 or Pt 5 for the future, or you just go ahead without any further environmental assessment requirements, which is what the proponent in its terms was seeking in its report which was then the subject of public exhibition.
70Tab 22 (fol 217) is the text of the advertisement of the exhibition of the EA. A photocopy of the actual advertisement appears at folio 218. It was approved on 27 March 2009 and the exhibition period advertised was from 1 April to 4 May 2009 . The " proponent " is clearly identified as " Sandy Shores Development Pty Ltd ".
71Among the documents found under tab 25 is a letter sent by Mr Wilson to Mr Power on 25 May 2009 , noting that, following public exhibition of the EA, the Department " has some key issues regarding the proposal ". They were addressed in a three page schedule (fols 250-252). After drawing attention to the attachment, the letter says:
The Department is of the view that the current proposal has failed to justify development beyond that recommended by Sainty (2006). The cumulative effect of the public and agency issues raised in conjunction with consideration of issues raised by the Department will result in the need for a significant redesign of the proposal. The redesign needs to be cognisant of the unique constraints of the site and must rigorously apply all of the principles of ecologically sustainable development. Various concerns have also been raised regarding the veracity of sections of the EA for the proposal. The redesign will need to be well justified and supported by evidence that addresses the concerns raised in the attachment and in other submissions.
72The letter concludes with the suggestion of a meeting involving Mr Alan Bright from the Department.
73Maddocks Lawyers, then acting for " the applicant " Sandy Shores Development Pty Ltd, wrote to Mr Wilson on 22 April 2010 ( tab 22A ), seeking to confirm that draft amendment No.29 to the Coffs Harbour LEP will " remain on hold and will not be exhibited " pending the outcome of the Part 3A determination. The letter stated that the company would prepare a response to the issues raised in the letter dated 25 May 2009. Maddocks suggested that all correspondence be directed to " the Project Management Team C/o Bill Yassine, Director, Sydney NSW Property Consultants", in Phillip Street Sydney. There is no registered corporation by that name, so the court has concluded that, when the interests promoting the subject proposal retained Mr Yassine as a consultant, he used it as a trading name.
74Mr Yassine sent an email dated 18 June 2010 ( tab 23 ) to the Department, with a copy to Mr Bright, acknowledging receipt of a letter dated 1 June 2010 and enclosing a reply indicating that " the entire proposal " is the subject of " a comprehensive analysis and review" . Sydney NSW Property Consultants has " engaged independent experts to review and report on all matters set out in...[the] letter dated 25 May 2009 ". Mr Yassine sought an extension of time for the response to mid-July 2010. The letter goes on to ask that " all communications " be directed to Sydney NSW Property Consultants in respect of this matter (fol 221).
75On 24 June 2010 ( tab 24 , fol 221), Mr Bright wrote to Mr Yassine requiring the submission of the " Preferred Project Report (PPR)... by mid-July 2010 at the latest " . Tab 25 contains the " Preferred Project Report " (fols 243A-243Z0), authored by Willana Associates Pty Ltd ('Willana'), and dated August 2010 , with the certification by a Mr Harding of the company dated 26 August 2010. The certificate says (at fol 243C):
This document has been prepared for Sandy Shores Developments by Willana Associates Pty Ltd to respond to The Department of Planning's response to the Environmental Assessment of this major project.
76Within tab 25, one finds (at fol 249), the Wilson to Power letter dated 25 May 2009, to which references have already been made above ([71]). However, at fols 244-247, still within tab 25, there are incomplete copies of some letters dated October 2010 . Folio 244 is the first page of a letter from Willana to the Department dated 27 October 2010. It refers to " recent meetings regarding the proposed development for Sandy Shores Developments ". The tendered page goes on for two paragraphs on " Land Dedication/Buffers And Environmental Outcomes ". It indicates that " the client " is prepared to amend the scheme to allow for further retention of some areas of the site desirable to keep in public ownership. An offset plan has been prepared indicating an area of 5.5-6ha that the applicant is prepared to dedicate to the State government. This will delete three allotments in the eastern precinct on the western side of the access road. Folio 245 is, similarly, an incomplete extract from a letter from Cardno dated 25 October 2010 to " Sandy Shores Development " c/o Sydney NSW Property Consultants, addressed to Mr Yassine. Folio 246 appears to be page three of that Cardno letter, introducing an annexure ('A') entitled " 45 Hearns Lake Road ", and at folio 247 there is a schematic map. These October pages were described by Ms Irish, Counsel for the first and third respondents, as an " addendum " to the August Willana report, so they were placed in the bundle, between the main report and the annexures to it.
77The annexures to the Willana report appear in tab 25 at fols 248-350. Apart from the May 2009 letter, they include Appendix 'C' (fols 258-325), an ecological report by Whelans Insites Development Consultants, dated 9 August 2010. It notes (at fol 264) that " the site is currently the subject of a Part 3A application by Sandy Shores Developments ... ". At folio 298 is a letter to Sandy Shores Developments c/o Yassine, from Cardno Lawson Treloar, who say they have been engaged by Sandy Shores Development Pty Ltd to review various reports.
78Peter Darby, in his capacity as a director of the respondent company, wrote to the Department on 2 November 2010 ( tab 26 ) indicating that as the owner of three nominated lots, the company has " authorised Planning Workshop Australia [at] first instance, and furthermore authorise Sydney NSW Property Consultants, to liaise and negotiate with the Department of Planning in regard to our Application ..." (fol 351).
79On 22-23 November 2010 , there was an email exchange ( tab 26A , fols 352-356), between Mr Withington from the Department and Mark Hannon at the Council. On 22 November 2010, Withington indicated that the Department was finalising its assessment of the concept plan application, and further that the terms of approval under consideration " will make Council the consent authority for future development on the site ". Mr Hannon replied later that day seeking further information on the draft assessment of the application and the statement of commitments. Inter alia , he said " ...the draft determination provides for development that differs vastly from that planned for under Council's adopted DCP and its draft LEP Amendment for this urban release area". In seeking an extension of time, Mr Hannon comments "the Department will also appreciate that this is not a conventional concept plan project".
80Later again on 22 November 2010, Mr Withington replied to Mr Hannon declining to send some of the material he had sought, and stating that he was unable to grant an extension of time to review the draft terms of approval. Twenty-four hours later, Mr Hannon reverted to Mr Withington following some discussions and asked for clarification as to why the approval would make Council a consent authority when something in excess of 100 lots is clearly a Part 3A project. The last email in the chain came later on 23 November 2010, with Withington saying to Hannon that the Department would be happy to hear Council's views on its role in determination of future applications for the subject site (fol 352).
81The draft of the " concept approval ", which was said, in that November email exchange, to have been shown to Council , is found in tab 27 (fols 357-368). This draft must be compared with the " final " approval at tab 31 . The draft at tab 27 proposed that the Minister's determination be expressed in the following terms:
I determine:
(a) Pursuant to section 75O of the Environmental Planning and Assessment Act 1979 (the Act) to approve the concept plan referred to in Schedule 1, subject to the terms of approval and modifications in Schedule 2 and the proponent's Statement of Commitments in Schedule 3; and
(b) Pursuant to section 75P(1)(b) of the Act, that all future development shall be subject to Part 4 (or Part 5) of the Act.
The modification and further assessment requirements are required to:
Encourage the orderly future development of the site;
Ensure adequate mitigation of environmental impacts of future development; and
Ensure protection and restoration of threatened species and their habitat.
82That draft approval at tab 27 nominated (fol 357), and defined (fol 358), the proponent as " Sydney NSW Property Consultants Pty Ltd ", and I also note that, in Part C of Schedule 2 of the draft, entitled " Further environmental assessment requirements ", reference was made (fol 362) to s 75P(2)(c) (see [20] above).
83The draft elicited a detailed reply from the Council ( tab 28 ), dated 26 November 2010 .
84Council expressed its disappointment and surprise at the draft determination having regard to Council's adopted planning controls for the site and other development sites in the Hearne's Lake/Sandy Beach Urban Development Area - approximately 200 lots would result, compared with 35, and the Department had previously expressed its support for Council's controls. The letter of 26 November 2010 forwarded copies of documents, including correspondence dating back to 31 March 2005, regarding the controls for that area, and continued:
The DCP and amending LEP process for this urban release area was highly contentious with significant community, agency and stakeholder group interest. The process involved a number of community forums, agency meetings and extension of exhibition periods to ensure transparency of process.
85Some 134 public and agency submissions had been received by Council as part of the DCP consultation process. Appendix 'A' to the letter is a Council paper (fols 372-381) on the DCP and developer contributions plan, and a copy of the DCP (fols 382-429). At folios 430-445 are the letters exchanged in 2005 between Council, Department and other agencies regarding the DCP.
86The Council letter went on to point out (fol 369) that "[r]ecent consents for subdivisions in this release area determined by both the Minister and Council have conformed to the adopted planning controls. This determination does not conform to these controls ". The letter then dealt with the Department's engagement of Sainty & Associates Pty Ltd. The Council suggested that the September 2006 Sainty analysis endorsed a totally different and much reduced development footprint, to that supported by the State in the draft Approval. Council acknowledged that it had been consulted by the Department, but it was critical of the extent and quality of that consultation. The letter also enclosed an appendix of recommended changes and additional items for the Approval, but Council reaffirmed its non-endorsement of the suggested determination.
87On the question of the Department's offer to make Council the consent authority for future developments on the site, the Council said (fol 371):
...having regard to the history, nature, complexity and the Department's knowledge of the proposal and also bearing in mind that the proposal (to be determined) exceeds 100 residential lots in the coastal zone Council cannot accede to this offer and requests that future applications be determined in the normal manner, as Part 3A matters, as provided for in SEPP (Major Development) 2005.
88The letter concluded with requests that (1) consideration of the application be placed on hold pending discussions between the Department and Council staff, and (2) a copy of the assessment report be made available to Council for review and comment.
89Among a series of appendices to the letter the court found appendix 'A' (fols 372-446), being Council's report on its adoption of a DCP and Development Contribution Plan for the Hearnes Bay/Sandy Beach area.
90Appendix 'B' (fol 446) is a letter of 7 July 2006 from Mr Wilson in the Department to the General Manager of the Council. It concerned the original engagement of Sainty, and suggested that the Council not proceed with the amendment of its LEP until the Sainty study had been examined.
91Appendix 'C' (fols 447ff) is a series of memos concerning key issues about the concept approval, all dated 24 November 2010 -biodiversity (fol 447-448); traffic (fol 449); flood levy; and buffer to Hearne's Lake (fol 450).
92Appendix 'D' is a list of suggested improvements to the Concept Plan and it covers four pages (fols 451-454).
93The Department's recommendation to the Minister dated 19 December 2010 , for approval of the Concept Plan, subject to some modifications ( tab 29 , fols 456-459), was accepted by the Minister on 20 December 2010 . The " proponent " is described in those documents as " Sydney NSW Property Consultants Pty Ltd ", and the subdivision is said to be for 280 lots, with an estimated project cost of $12M. Following the exhibition, the Department had received 62 submissions, including eight from public authorities, and 54 from the general public. 92% of those responses were opposed to the project, 3.7% supported it, and 3.7% expressed concerns, but did not object. The eight major issues of concern are listed. Council had expressed the view that the development should be restricted to a maximum of 35 dwellings. It maintained its opposition to the scale of the proposal, and suggested modifications, some of which were made.
94The DG's EAR (s 75I) dated " December 2010 ", which was tagged to the briefing note in tab 29, is at tab 30 (fols 460-503). The Executive Summary (fol 462) speaks of the " concept plan application by Sydney NSW Property Consultants Pty Ltd (the proponent) to carry out a residential subdivision ...". In the EAR (s 3.6 at fol 470) the Department expresses its satisfaction, in accordance with s 75I, that the DGRs had been complied with. In the submission signed off by the Minister, the Department noted that it had not supported the proposal, and had focussed its attention on particularly sensitive issues which it dealt with through recommended terms of approval, by requiring further assessment at subdivision application stage, and by reduction in the scale of the development (see fol 459).
95At s 5.8 of the EAR (on p24/fol 487), the Department summarised the impact on potential lot yield of the modifications it had recommended. They would require the removal of approximately 14 lots from the eastern side of Stage 1, all of Stage 2 (approximately 15 lots), and all of Stage 6 (approximately 45 lots). The relocation of an internal road to land outside the 7B zoned buffer to the highway, may require the removal of 6-8 lots from the western edges of Stages 4 and 5. If the impact of Stage 5 cannot be adequately offset and Stage 5 is not constructed, the report noted that this would reduce the yield by 60 lots. The result will be a subdivision capable of between 140 and 200 lots, still well in excess of the 35 favoured by the Council.
96Under the heading entitled " Recommendation " at s 6 of the Report it states (on p25/fol 488):
This application seeks Concept Plan approval for a residential subdivision of 280 residential lots. The site has been identified as having considerable environmental constraints including the presence of endangered ecological communities, the impact of flooding compounded by the effects of climate change and sea level rise, and the possible presence of items of Aboriginal cultural significance.
These constraints need to be balanced against the fact that the site is identified as a 'Growth Area' in the Mid North Coast Regional strategy and the site's predominantly residential zoning under the Coffs Harbour LEP.
The Department recommends approval of a modified version of the concept plan, allowing for a subdivision of up to approximately 200 residential lots. This modified plan will provide for the retention and rehabilitation of large areas of the environmentally sensitive parts of the site, including the eastern side of the lake and the north western corner of the site. The construction of the perimeter roads to a height of RL 3.6m AHD so as to act as levies will take into account the anticipated impacts of climate change and sea level rise on the flooding of the site.
Matters identified as requiring further assessment as part of future development applications include the impact of the construction of Stage 5, the importance of a site of potential aboriginal archaeological deposit (PAD 1), stormwater and groundwater management, and ensuring that water quality control devices are located in such a way as to minimise impact on environmentally sensitive areas.
97At Appendix 'A' to this EAR (tab 30, at fol 489), attention is drawn to the EA on the website. Appendix 'B' (at fol 490) summarises the public submissions (fols 490-491). At Appendix 'C', one is referred to the website to see the proponent's response to those submissions (fol 492). Appendix 'D' (commencing at fol 493) contains a consideration of environmental planning instruments. Appendix 'E' (fol 496-502) is the statement of commitments, a step envisaged by the legislation whereby the proponent makes commitments to do various things often reflecting the preferred project report, and often to seek to address concerns expressed by members of the public, or by public authorities or agencies, troubled about certain aspects of the proposal (see T28.06.11, p20, LL29-36).
98The following exchange occurred in court after a discussion of the EAR's recommendation (tab 30, fol 488, [96] above - see T28.6.11, pp18-19, L43ff):
HIS HONOUR: Is it your case that the council wrote a balanced letter but the reports don't report that to the minister?
GRIFFITHS: Only in respect of failure to address expiration of the DGRs and that the EA post dated the DGRs. In other respects we don't quibble about the contents of the report--
HIS HONOUR: I just noticed on a quick look through this document it doesn't appear to record that the council doesn't want anything to do with the future developments.
GRIFFITHS: No, that's certainly not drawn--
HIS HONOUR: Which is not the issue of the day when this report is made but might be the issue of today, that's all.
GRIFFITHS: It is, indeed it is, your Honour. We don't say that that was a mandatory relevant consideration but it's an important step in understanding just how, through the eyes of a member of the public, the terms of that concept approval are, because of the confusion, the utter confusion between the two statements that I've drawn your Honour's attention to and that I'll come back to and address later. That of course goes to ground 2.
HIS HONOUR: The outcome of the process is that a proposal - leave aside the niceties of who lodged it - the proposal was originally for 300 lots, the council says no it's much too much, we prefer 35, you end up with somewhere between 140 and 200.
GRIFFITHS: That's right, that's correct.
HIS HONOUR: So some of the council's concerns are inbuilt in that decision, or some of the council's reluctance is.
GRIFFITHS: Yes, to the extent that it's a reduction it's obviously perhaps less objectionable but the council still was expressing its objection to the draft terms of approval representing a modified approval--
HIS HONOUR: On the basis of scale.
GRIFFITHS: On the basis of scale and that was maintained throughout. ...
99Dr Griffiths pointed out (at T28.6.11, p18) that nowhere in the exhibited material, the DG's EAR, or the proponent's EA, is any reference made to the expiry of the DGRs. Dr Griffiths says (at T28.6.11, p18, LL25-29):
... ground 1 has got two elements to it, lack of power to take various steps where the DGRs have expired, October 2008, and alternatively failure to draw the minister's attention to a mandatory relevant consideration, namely that the EA post-dates the expiry of the DGRs.
100Dr Griffiths submitted that the errors complained of are jurisdictional errors. He did not complain that the Council's objection was not properly conveyed, but that the DG did fail to communicate to the Minister that the requirements had expired and that the EA post-dated that expiry. The Approval is beyond power because the statutory provisions relied upon as the source for what is being done, do not authorise it.
101Under s 75X(2) (extracted at [23] above), the DG has a statutory obligation to make certain documents under Part 3A publicly available. I note in particular sub-paragraph (e), which requires disclosure of any application for approval of concept plans.
102Tab 31 (fols 504-512) contains the Minister's Concept Plan Approval at the heart of these proceedings. It was signed by the Minister on 20 December 2010 , and must be compared with the draft of it, which appeared at tab 27 (see [81] above). In final form it is in the following terms:
I determine:
(a) Pursuant to section 75O of the Environmental Planning and Assessment Act 1979 (the Act) to approve the concept plan referred to in Schedule 1, subject to the terms of approval and modifications in Schedule 2 and the proponent's Statement of Commitments in Schedule 3; and
(b) Pursuant to section 75P(1)(b) of the Act, that approval to carry out the project shall be subject to Part 3A of the Act.
The modification and further assessment requirements are required to:
Encourage the orderly future development of the site;
Ensure adequate mitigation of environmental impacts of future development; and
Ensure protection and restoration of threatened species and their habitat.
103In Schedule 1 of the Approval (fol 504), the " proponent " is identified as " Sydney NSW Property Consultants Pty Ltd ". In the definitions section (fol 505) the " proponent " is defined as " Sydney NSW Property Consultants Pty Ltd or any party acting upon this approval ".
104Schedule 2 of the Approval (fols 506-510) lists the conditions placed on the approval, in three Parts, A, B and C.
105Part A of Schedule 2 (fols 506-507) contains the " administrative conditions ". Condition A1 makes clear that the Approval is for the concept plan only, and not the project itself. It notes that the proponent sought concept plan approval for community title subdivision of 280 lots, but " due to environmental constraints, approval has not been granted to a scheme of this size" . Condition A2, " to avoid any doubt ", states that the Approval does not approve any future development within the areas described as Stage 2, Stage 6, and that part of Stage 1 east of the extension of Ti-Tree Road as depicted on the modified staging plan at Schedule 3. Condition A3 requires the proponent to carry out " the Concept Plan and all related future applications generally in accordance with " the EA, the preferred project report and addendum letter, and the Statement of Commitments, except for " any modification which may be necessary for the purpose of compliance with the BCA and any Australian Standard " it incorporates, and except also for anything " otherwise provided by the modifications and further assessment requirements... ".
106Part B of Schedule 2 (fol 508) commences with a note in these terms:
In making the modifications as described in this schedule, the Minister has only granted Concept Plan approval to a community title subdivision of approximately 200 residential lots along the western and southern boundaries of the site.
107Part C of Schedule 2 (fols 509-511) applies various specified DGRs to future stages of the project pursuant to s 75P(2)(c). Each future subdivision application will have to fulfil a list of requirements in condition C1.
108Schedule 3 of the Approval (fol 512) comprises an abstract of marked up plans, indicating what areas of development " are not approved " pursuant to condition B1, which provided (fol 508):
The north western precinct (Stage 6) containing approximately 45 lots, the north eastern precinct (Stage 2) containing approximately 15 lots, and the eastern edge of the southern precinct, east of the extension of Ti-Tree Road (part of Stage 1) containing approximately 14 lots are not approved and this land is to be added to the Conservation Area (see Schedule 3).
109On 15 March 2011 , these proceedings were commenced.
110On 13 May 2011 , the 2011 SEPP amendment was made.
111On 17 June 2011 , the summons, and, then, the Points of Claim and Defence, were amended.