Cowra Shire Council v The Minister for Urban Affairs and Planning & Anor

APPLICANT: Mr C J Leggat (Barrister) SOLICITORS: Pike Pike & Fenwick

FIRST RESPONDENT: LEGAL REPRESENTATIVES: Mr P R Clay (Barrister) SOLICITORS: Christine Hanson

IN THE LAND AND Matter No: 11142 of 2000 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 4 April 2001

Cowra Shire Council Applicant v The Minister for Urban Affairs and Planning First Respondent Australian Silicon Pty Limited ACN 091 097 675 Second Respondent REASONS FOR JUDGMENT HIS HONOUR:

1. This an appeal under section 98(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") by an objector, Cowra Shire Council ("the council") which is dissatisfied with the determination of the consent authority, the Minister for Urban Affairs and Planning, to grant consent subject to conditions to a development application made by the second respondent, Australian Silicon Pty Limited for designated development. The appeal is against a condition requiring the payment of a monetary contribution of $100,000 to the council in accordance with section 94 of the EP&A Act for the provision, augmentation and/or embellishment of bushfire services and/or community facilities. The council had sought a condition requiring a monetary contribution of $700,000 for such services and facilities.
2. The development is for the construction and operation of a quartz mine and associated facilities. As well as being designated development it is also State significant development for which the Minister is the consent authority (Section 76A(7)(9) of the EP&A Act) The development application was determined by the granting of consent subject to a large number of conditions including relevantly Condition 61: 61 Community contributions Notwithstanding any other monetary conurbation required under this consent, the applicant shall contribute $100,000 to Cowra Shire Council, in accordance with section 94 of the Act, payable for the provision, augmentation and/or embellishment of bushfire services and/or community facilities. A preliminary question of law
3. The proposed development straddles the boundary between two local government areas, Cowra Shire and Boorowa Shire. This fact has resulted in a submission by Mr P R Clay, appearing for the Minister, that the Minister had no jurisdiction to impose a condition under section 94; and since the Court has no greater power than the person or body from whom the appeal lies, then the Court likewise has no power on a hearing de novo to impose a condition under section 94.
4. According to the submission, as I understand it, the sole or exclusive power enabling the Minister to impose such a condition is found not in section 94 but in 94A. Sub-section 94A(1) enables the Minister to impose such a condition if the application relates to: (a) land within a growth area, or (b) other land within a single area. The word "area" has the same meaning as it has in the Local Government Act 1993 (section 4 of the EP&A Act), namely an area of a council constituted under that Act. Since the development application relates to land which is not within a single area then, according to the submission, section 94A cannot apply.
5. The precursor to section 94A was section 94AA which was inserted in the Act by the Environmental Planning and Assessment (Contributions Plans) Amendment Act 1991. Mr Clay relies upon the second reading speeches in the Upper and Lower Houses of the Parliament on the relevant Bill in support of his submission that section 94A is the sole or exclusive power of the Minister to impose such a condition. In the Legislative Council the Minister for Planning and Minister for Energy, the Honourable R J Webster said: In relation to section 94, conditions imposed by the Minister or director, schedule 1(2) inserts a new condition 94AA. The proposed section states that the Minister for Planning or the Director of Planning may impose a section 94 condition when granting consent to the carrying out of development on the land that is within a growth centre, defined as including a designated area under the Albury-Wodonga Development Act 1974, or on other land that is within a single local government area. In the case of land within a growth centre, such a condition will be able to require a contribution towards the provision of public amenities or public services for the whole of the growth centre, regardless of local government boundaries. When imposing a section 94 condition in any case the Minister or director must have regard to, but is not bound by, any relevant contributions plan. Any money received as a consequence of any such condition must be transferred to the development corporation for the centre or the council of the area concerned and must be used within a reasonable time for the purpose for which it was levied. (Hansard, 19 November 1991, page 4842)
6. In the Legislative Assembly the Minister for the Environment, the Honourable T Moore, said: Use of s94 by the Minister or the Director Finally in the light of the new requirements for contributions plans, it was considered necessary for the bill to define the powers of the Minister for Planning and the Director of Planning when imposing conditions under s94. (Hansard, 10 December 1991, page 6143)
7. Mr Clay submits that the general power to impose a condition under section 94 and the language of that section is not applicable where the consent authority is the Minister. Sub-section (4) provides that such a condition is subject to any direction of the Minister under section 94E(1). It could not be thought that the Minister would give a direction to himself. Sub-section (5) provides that the consent authority may accept the dedication of land or the provision of a material benefit (other than the dedication of land or the payment of a monetary contribution) in full or part satisfaction of such a condition. It does not sit comfortably with a power on the part of the Minister to require such a benefit if there is no benefit flowing to the council. The directions in sub-section (6), (7) and (8) as to the application of any monetary contribution, or the use of dedicated land, can only apply to a consent authority being a local government council. These provisions, it is submitted, also show that the power of the Minister to impose such a condition does not arise under section 94 but only under section 94A.
8. Mr C J Leggat, who appears for the council, made the following submissions. (1) The definition of "consent authority" which is used throughout section 94, is as follows; Consent authority , in relation to a development application or an application for a complying development certificate, means: (a) the council having the function to determine the application; (b) if the provision of this Act, the regulations or an environmental planning instrument specifies a Minister or public authority (other than a council)as having the function to determine the application - that Minister or public authority, as the case may be. (Section 4 of the EP&A Act) (2) Section 94A is another source of power, rather than the sole or exclusive source of power. Thus, by sub-section 94A(4) the Minister is required to merely take into consideration any contributions plan approved under section 94B. (3) This is to be contrasted with sub-section 94(11), which provides that a council may impose a condition referred to in that section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94B. This differentiates between a consent authority being a council and another kind of consent authority within the terms of that section. (4) The construction contended for by the Minister would lead to absurd consequences. One such absurd consequence would be the present case in which a development wholly within a single area could be subject to such a condition but one that straddles the boundary between two areas could not be subject to such a condition.
9. I am unable to agree with Mr Clay's submission. The Minister is "the consent authority" for State significant development: section 76A(9) of the Act. The Minister is thus a "consent authority" for the purpose of the definition of consent authority: section 4 of the Act. Section 94 throughout, except for sub-section (11), refers to the "consent authority". Sub-section (11) was inserted into the Act at the same time as the precursor to section 94A was inserted (then called section 94AA). Sub-section 94(11) provides that "a council" (as distinct from a consent authority of another kind) may impose a condition under section 94 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94B. Sub-section 94A(4) is the equivalent of the new sub-section (11) of section 94. In contrast to section 94(11) it provides that the Minister (or Director, as the case may be) must "have regard to" any relevant contributions plan approved under section 94B. Sub-section 94A(5) goes further and provides that the Minister (or the Director) may impose such a condition even it is not of a kind allowed by, or is not in accordance with, a contributions plan. Finally, sub-section 94A(6) provides that any monetary contributions paid in accordance with such a condition imposed by the Minister (or by the Director) must be paid to the corporation for the growth centre or to the council of the area concerned and must be applied within a reasonable time.
10. These provisions are consistent with the reasons for the introduction of the section 94A (then called section 94AA), as appears from the second reading speeches. In particular, in the Legislative Council the Minister said: In the case of land within a growth centre, such a condition will be able to require a contribution towards the provision of public amenities or public services for the whole of the growth centre, regardless of local government boundaries. When imposing a section 94 condition in any case the Minister or director must have regard to, but is not bound by, any relevant contributions plan. Any money received as a consequence of any such condition must be transferred to the development corporation for the centre or the council of the area concerned and must be used within a reasonable time for the purpose for which it was levied.
11. In the Legislative Assembly the Minister relevantly said: Finally in the light of the new requirements for contributions plans, it was considered necessary ... (The new requirements were those relating to the making of contributions plan, inter alia)
12. The Explanatory Note relating to the Bill as introduced into the Parliament states: The amendments also define the power of the Minister and the Director of Planning in imposing section 94 conditions and make it clear that, when imposing such conditions, they will be required to have regard to (but will not be bound by) any relevant contributions plans).
13. The whole purpose of section 94A (then called section 94AA) is to make contributions plans, which are binding if the consent authority is a council, not binding but merely a matter to be considered when the consent authority is the Minister (or the Director). It also had the purpose of requiring that any monetary payment be paid out to the director of the corporation for the growth centre, or to the council of the area concerned, and to require the expenditure of such a monetary contribution within a reasonable time.
14. It seems to me that a sensible reading of sub-section 94A(1) is that the reference in paragraph (b) to "other land within a single area" is to distinguish it from "land within a growth centre". Land "within a growth centre" is not necessarily land within a single area - growth centre usually encompass more than one area. In the present case the development relates to land which is not within a growth centre, but is within two single areas.
15. In my opinion the Minister, in imposing Condition 61, was exercising his power under section 94A. If, contrary to my conclusion, he did not have the power to do so under section 94A, then the alternative source of power under section 94 may be relied upon. A mistake in the source of power does not invalidate the exercise of power, provided any alternative source of power is available. I extensively discussed the ability to rely upon an available source of power in Holster v Director-General National Park and Wildlife [1999] NSWLEC 102, unreported, at pars [86]-[111]. In The Minister v Rosemount Estates Pty Limited (1996) 91 LGERA 31 it was accepted by Cole JA (at 85-89), with whom Handley JA (at 36) at Sheller JA (at 98) agreed, that it is a clear law that a mistake in the source of power works no invalidity. Validity depends simply on whether a relevant power existed.
16. I therefore conclude that the Minister had the power to impose the condition which he did and which became Condition 61. I therefore propose to continue with the hearing of the appeal on the merits.

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