Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council & Ors

The statutory framework 8 Prior to the coming into force of the Environmental Planning and Assessment Amendment Act 1997 on 1 July 1998 (the 1987 Amendment Act), the making of a development application was governed by the provisions of s.77 of the EPA Act and the Environmental Planning and Assessment Regulation 1994 (the 1994 Regulation). Relevantly, s.77 provided as follows: "(1) A development application may be made only by: (a) the owner of the land to which that development application relates, or (b) any person, with the consent in writing of the owner of the land to which that development application relates. … (3) A development application shall: (a) be made to the consent authority, (b) be made in the prescribed form and manner, (c) where the application is not in respect of designated development, contain, or, as may be provided by the regulations, be accompanied by, such information and particulars as may be prescribed, (d) where the application is in respect of designated development, be accompanied by an environmental impact statement in the prescribed form prepared by or on behalf of the applicant, and (d1) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, be accompanied by a s species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 , (e) be accompanied by such fee determined by the consent authority (not exceeding the maximum amount, if any, prescribed in relation thereto), or, where a fee is prescribed, by that prescribed fee. (3A) A development application shall not be made in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987) unless any consent to the development required under that Act has been obtained. (3B) The consent authority may reject a development application within 7 days after its receipt if it is not clear as to the development consent sought or if it is not easily legible. An application so rejected is taken not to have been made and the application fee is to be refunded." 9 Clause 45(1) of the 1994 Regulation provided that for the purpose of s.77, the prescribed form for a development application was Form 1. The only other relevant provision of that Regulation was cl.47 which provided as follows: "(1) The consent authority may require the applicant to give it any additional information about the proposed development that is essential to the consent authority's proper consideration of the development application. (2) The requirement must be made by the consent authority, in writing, within 21 days after it receives the development application. (3) The information that a consent authority may require may include, but is not limited to, information relating to any relevant matter referred to in section 90(1) of the Act or in any relevant environmental planning instrument." 10 The only requirement for the provision of an SEE was in Form 1 as prescribed by the 1994 Regulation for the purpose of s.77(3)(b). Under the heading "environmental Impact" it required that for development other than designated development there be attached of an SEE. Note 7 to Form 1 provided as follows: "Where a proposed development is not designated development, the application must be accompanied by a statement of environmental effects unless the proposed development is considered to have a negligible effect (eg minor interior alterations) which must (a) demonstrate that the environmental impact of the development has been considered, (b) set out steps to be taken to protect the environment or to mitigate the harm." 11 The 1997 Amendment Act involved the wholesale overhaul of the EPA Act as originally enacted. Section 77 was replaced by s.78A which relevantly provided as follows: "(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development. … (7) A development application cannot be made in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987 ) unless any consent to the development required under that Act has been obtained. (8) A development application must be accompanied by: (a) if the application is in respect of designated development - an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or (b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 . (9) The regulations may specify other things that are required to be submitted with a development application." 12 As a consequence of these amendments to the EPA Act, and as the Minister pointed out in his Second Reading Speech to the 1997 Amendment Bill, amendments to the 1994 Regulation were necessary "to transfer some procedural matters from the Act, revise existing clauses and to accommodate new matters." 13 These changes were accommodated by the Environmental Planning and Assessment Amendment Regulation 1998 (the 1998 Amendment Regulation) which replaced cls.45 and 47 of the 1994 Regulation with a new cl.46 (which was equivalent to the old ss.77(1) and (2A)) and, relevantly, new cls.46A, 47 and 48. Clause 46A was relevantly in the following terms: "(1) A development application: (a) must be in Form 1, and (b) must be accompanied by the information required by Form 1, and (c) must be accompanied by the fee, not exceeding the fee prescribed in Part 9, determined by the consent authority, and (d) must be: (i) delivered by hand, or (ii) sent by post, or (iii) transmitted electronically, to the principal office of the consent authority, and may not be sent by facsimile transmission. (2) A development application that relates to development for which consent under the Wilderness Act 1987 is required, must be accompanied by a copy of that consent." 14 This provision in part replaced the original s.77(3) of the EPA Act. There was no relevant change to Form 1 to that contained in the 1994 Regulation so far as it related to the attachment to the development application of an SEE where the proposed development was other than designated development. 15 Clause 47 of the 1998 Amendment Regulation mirrored the original s.77(3B) of the EPA Act and was in the following terms: "(1) A consent authority may reject a development application within 7 days after receiving it if the application is illegible or unclear as to the development consent sought. (2) An application that is rejected under this clause is taken for the purposes of the Act never to have been made. (3) The consent authority must refund to the applicant the whole of any application fee paid in connection with an application that is rejected under this clause." 16 Clause 48 was relevantly in the same terms as cl.47 of the 1994 Regulation except the reference in the latter to s.90(1) of the EPA Act was replaced by a reference to s.79C. 17 Significant changes, at least from a procedural perspective, were effected by the 2000 Regulation. In particular, cl.46A of the 1998 Amendment Regulation was replaced by cl.50 of the 2000 Regulation. It was relevantly in the following terms: "(1) A development application: (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and (b) if the consent authority so requires, must be in the form approved by that authority, and (c) must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority, and (d) must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission. (1A) A development application that relates to a residential flat development, and that is made on or after 1 December 2003, must be accompanied by a design verification from a qualified designer, being a statement in which the qualified designer verifies: (a) that he or she designed, or directed the design, of the residential flat development, and (b) that the design quality principles set out in Part 2 of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development are achieved for the residential flat development. (2) A development application that relates to development for which consent under the Wilderness Act 1987 is required must be accompanied by a copy of that consent. (3) Immediately after it receives a development application, the consent authority: (a) must register the application with a distinctive number, and (b) must endorse the application with its registered number and the date of its receipt, and (c) must give written notice to the applicant of its receipt of the application, of the registered number of the application and of the date on which the application was received." 18 Part 1 of Schedule 1 to the 2000 Regulation was headed "Development applications". Clause 1 provided that "A development application must contain the following information:"

which was then followed by a list of 10 items not presently relevant. 19 Clause 2 was headed "Documents to accompany development application" which I set out in full: "(1) A development application must be accompanied by the following documents: (a) a site plan of the land, (b) a sketch of the development, (c) a statement of environmental effects (in the case of development other than designated development), (d) in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation), (e) an environmental impact statement (in the case of designated development), (f) a species impact statement (in the case of land that is, or is part of, critical habitat or development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats), (g) if the development involves any subdivision work, preliminary engineering drawings of the work to be carried out, (h) if an environmental planning instrument requires arrangements for any matter to have been made before development consent may be granted (such as arrangements for the provision of utility services), documentary evidence that such arrangements have been made, (i) if the development involves a change of use of a building (other than a dwelling-house or a building or structure that is ancillary to a dwelling-house): (i) a list of the Category 1 fire safety provisions that currently apply to the existing building, and (ii) a list of the Category 1 fire safety provisions that are to apply to the building following its change of use, (j) if the development involves buiding work to alter, expand or rebuild an existing building, a scaled plan of the existing building, (k) if the land is within a wilderness area and is the subject of a wilderness protection agreement or conservation agreement within the meaning of the Wilderness Act 1987 , a copy of the consent of the Minister for the environment to the carrying out of the development, (l) in the case of development to which clause 2A applies, such other documents as any BASIX certificate for the development requires to accompany the application, (2) The site plan referred to in subclause (1)(a) must indicate the following matters: (a) the location, boundary dimensions, site area and north point of the land, (b) existing vegetation and trees on the land, (c) the location and uses of existing buildings on the land,

(d) existing levels of the land in relation to buildings and roads, (e) the location and uses of buildings on sites adjoining the land. (3) The sketch referred to in subclause (1)(b) must indicate the following matters: (a) the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land's boundaries and adjoining development, (b) floor plans of any proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building, (c) elevations and sections showing proposed external finishes and heights of any proposed buildings, (d) proposed finished levels of the land in relation to existing and proposed buildings and roads, (e) proposed parking arrangements, entry and exist points for vehicles, and provision for movement of vehicles within the site (including dimensions where appropriate),

(f) proposed landscaping and treatment of the land (indicating plant types and their height and maturity), (g) proposed methods of draining the land, (h) in the case of development to which clause 2A applies, such other matters as any BASIX certificate for the development requires to be included on the sketch. (4) A statement of environmental effects referred to in subclause (1)(c) must indicate the following matters: (a) the environmental impacts of the development, (b) how the environmental impacts of the development have been identified, (c) the steps to be taken to protect the environment or to lessen the expected harm to the environment, (d) any matters required to be indicated by any guidelines issued by the Director-General for the purposes of this clause. (5) In addition, a statement of environmental effects referred to in subclause (1)(c) must include the following, if the development application relates to residential flat development to which State environmental Planning Policy No 65 - Design Quality of Residential Flat Development applies: (a) an explanation of the design terms of the design quality principles set out in Part 2 of State environmental Planning Policy No 65 - Design Quality of Residential Flat Development applies, (b) drawings of the proposed development in the context of surrounding development, including the streetscape, (c) development compliance with building heights, building height planes, setbacks and building envelope controls (if applicable) marked on plans, sections and elevations, (d) drawings of the proposed landscape area, including species selected and materials to be used, presented in the context of the proposed building or buildings, and the surrounding development and its context, (e) if the proposed development is within an area in which the built form is changing, statements of the existing and likely future contexts, (f) photomontages of the proposed development in the context of surrounding development, (g) a sample board of the proposed materials and colours of the façade, (h) detailed sections of proposed facades, (i) if appropriate, a model that includes the context." (Emphasis added) 20 In essence, cls.(1) and (2) of Pt 1 of Schedule 1 lists the information which a development application must contain and the documents which must accompany the application which previously were required to be provided in or attached to the prescribed form as required by the form itself and, in particular by the notes to the form. No longer was there to be a prescribed form subject only to the requirement of cl.50(1)(b) that an application must be in the form approved by a consent authority if it so required. 21 Clause 51 of the 2000 Regulation replaced cl.47(1)-(3) of the 1998 Amendment Regulation. Of particular relevance is that cl.51(1) was originally in the following terms: "(1) A consent authority may reject a development application within 7 days after receiving it if the application is illegible or unclear as to the development consent sought." 22 However, the clause was amended by the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 (the 2003 Act). I set out hereunder the whole of cl.51 as it is now and was at the time the consent was granted: "(1) A consent authority may reject a development application within 7 days after receiving it if: (a) the application is illegible or unclear as to the development consent sought, or (b) the application does not contain any information, or is not accompanied by any document, specified in Part 1 of Schedule 1. (2) A consent authority may reject a development application within 14 days after receiving it if: (a1) being an application for development requiring concurrence, the application fails to include the concurrence fees appropriate for each concurrence relevant to the development, or

(a) being an application for integrated development, the application fails: (i) to identify all of the approvals referred to in section 91 of the Act that are required to be obtained before the development may be carried out, or (ii) to include the approval fees appropriate for each approval relevant to the development, or (iii) to include the additional information required by this Regulation in relation to the development, or (b) being an application referred to in section 78A (8) (b) of the Act, the application is not accompanied by a species impact statement referred to in that paragraph. (3) An application that is rejected under this clause is taken for the purposes of the Act never to have been made. (4) The consent authority must refund to the applicant the whole of any application fee paid in connection with an application that is rejected under this clause." 23 The 2003 amendment of cl.51(1) is, in my opinion, of significance as it now provides that a consent authority is empowered to reject a development application where it is not accompanied by any documents specified in Pt 1 of Schedule 1 including an SEE. 24 In the Second Reading speech to the 2003 Act, the responsible Minister observed that the new provisions of the 2000 Regulation included those that "allow councils to reject development applications within 7 days if they do not contain the information required by Schedule 1 of the EP&A Regulation 2000. This will help to alleviate the problems the consent authorities experienced in having to seek further information from applicants." 25 Notwithstanding that observation, cl.54 of the 2000 Regulation, which replaced cl.48 of the 1998 Amendment Regulation, relevantly provides: "(1) A consent authority may request the applicant for development consent to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the application

(3) The information that a consent authority may request includes, but is not limited to, information relating to any relevant matter referred to in section 79C (1) (b)-(e) of the Act or in any relevant environmental planning instrument. …

(5) Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided. (6) If the applicant for development consent has failed to provide any of the requested information by the end of: (a) any period specified as referred to in subclause (2) (b), or (b) such further period as the consent authority may allow, the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly." The reasoning of the primary judge 26 The primary judge commenced his reasoning process by reference to the fact that the EPA Act had always distinguished designated development as a special class of development that was subjected by the legislature to additional requirements and a special regime for environmental assessment that did not apply to applications for non-designated development. This was exemplified by the fact that it was only in relation to designated development that third party (objector) appeal rights were conferred by s.98. 27 Although no such appeal rights are available to an objector to development which, although not designated development, is development which is likely to significantly effect threatened species etc., and therefore requires a species impact statement pursuant to s.78A(8)(b) of the EPA Act, it is apparent from the judgment of Handley JA, with whom Kirby ACJ and Priestly JA agreed, in Helman v Byron Shire Council (1995) 87 LGERA 349 at 358-359 that the requirement mandated by s.78A(8) for a development application to be accompanied by in the one case an environmental impact statement and in the other a species impact statement, was of particular significance in determining whether a consent granted in the absence of either statement was invalid. 28 The primary judge (at [50]-[55]) also contrasted on the one hand the statutory requirements for an environmental impact statement and a species impact statement which were prescribed in considerable detail and, on the other, the requirements for an SEE in cl.2(4) of Pt 1 of Schedule 1 to the 2000 Regulation. I agree with his Honour (at [74]) that the contrast is marked: cf cls.71-73 and Schedule 2 to the 2000 Regulation which relate to the form and content of an environmental impact statement and ss.109-113 of the Threatened Species Conservation Act 1995 (the Threatened Species Act) as to the form and content of and the accreditation of persons who prepare species impact statements. 29 It should be further noted that under cl.71 of the 2000 Regulation, the person who prepares an environmental impact statement is required to declare that the information contained in the statement is neither false nor misleading. There is not such requirement for an SEE. 30 Although neither the 2000 Regulation nor its predecessors specify that the author of an environmental impact statement is required to have any particular qualifications (unlike the author of a species impact statement), nonetheless the very nature of the various categories of designated development listed in Pt 1 of Schedule 3 to the 2000 Regulation are such as to require the retention of the services of a person with particular qualifications so as to be capable of assessing the environmental impact of the particular development to which the statement relates and being in a position to make the declaration mandated by cl.71(f). 31 It was no doubt for the foregoing reasons that his Honour (at [55]) observed that the increasing complexity involving the proliferation and requirements for the making of a development application to which s.78A(8) applied, was the reason why those requirements are now set out in detail, in the case of designated development in the 2000 Regulation, and in the case of development which was likely to significantly impact threatened species etc., in the detailed provisions of the Threatened Species Act. 32 A critical point made by the primary judge was that the source of the obligation for the preparation of an environmental impact statement on the one hand and a species impact statement on the other remained in the EPA Act itself whereas in contrast, the obligation to prepare an SEE was originally sourced in the prescribed form and, when that was abandoned, in the provisions of the 2000 Regulation. It was never directly sourced in the Act. 33 According to his Honour's analysis of the issue (at [67]), the relevant question to be determined was whether a document that otherwise would qualify as a development application in terms of the EPA Act was nonetheless rendered void or a nullity by virtue of the fact that it was not accompanied by an SEE, being one of the documents required to accompany a development application as required by the combined operation of cl.50(1)(a) and cl.2(1)(c) of Pt 1 of Schedule 1 to the 2000 Regulation. 34 However, apparently this was not the question which the parties had debated before his Honour in their competing arguments which proceeded upon the common assumption that the absence of an SEE from the application relevantly created a breach of s.78A(1) of the EPA Act, the difference between the parties being the legal consequences of that breach. 35 Although his Honour apparently thought that the manner in which the case had been debated before him raised a different issue to that which he considered required determination, I find it difficult to discern any relevant difference for in both cases the question is whether a consent to a development the subject of an application is invalid because the application itself because it is not accompanied by an SEE. By "accompanied" I mean the lodging with the consent authority of an SEE prior to its determination of the application. 36 The first appellant submitted before the primary judge that the purpose of an SEE was to alert and inform the consent authority of the likely environmental impacts of the proposed development and to enable the public to consider those impacts in those cases where the application was required to be publicly notified. So understood, it was submitted that an SEE was a "fundamental" part of the development application and that the failure to provide that document rendered invalid the application and any subsequent consent granted thereto. 37 The respondents countered by submitting that there was no discernible legislative purpose or intention which could be gleaned from the EPA Act to invalidate a development application which was not accompanied by an SEE. Reliance was placed upon the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 where, in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ at 390 [93], it was observed (omitting footnotes) that: "[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'. " 38 Earlier in the joint judgment their Honours had, according to the primary judge, recognised the precarious nature of the judicial task of discerning the relevant legislative intent where they observed (at 388-389 [91]): "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the conditions. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue." 39 The primary judge noted that the approach of the High Court in Project Blue Sky was reflected in the judgment of Handley JA in Helman, three years previously. That case involved designated development the application for which was required to be publicly exhibited together with the accompanying environmental impact statement. However, in the circumstances of that case the development application was not only required to be accompanied by an environmental impact statement but also by a species impact statement. The first was provided but not the second. It was held that the development consent granted to the application was invalid as it did not comply with the then s.77(3)(d1) (now s.78A(8)(b)) upon the basis (at 358) that the late lodgement of the species impact statement had by-passed the statutory requirement that such a document be available for inspection and consideration by the public. 40 In other words, although the decision-maker in that case had the benefit of the species impact statement, the objectors had no such opportunity to consider it or make submissions based on it. In the result Handley JA (at 359) considered in a passage referred to by the primary judge (at [72]) that it was something akin to a denial of natural justice. 41 However, I note that in that case the requirement for public exhibition arose as a consequence of the subject of the application being designated development in respect of which a timely environmental impact statement was provided whereas there is no requirement in the EPA Act or the 2000 Regulation for the public notification of a non-designated development application merely because it is required to be accompanied by a species impact statement. 42 Nevertheless, the significance of a species impact statement was again referred to by this Court in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 where it was held that taking into account the legislative purpose and the statutory context, the decision as to whether a species impact statement was required in accordance with Div.2 of Pt 6 of the Threatened Species Act pursuant to s.77(3)(d1) of the EPA Act was to be construed as a jurisdictional fact (or condition precedent) which the Land and Environment Court must determine for itself. 43 The Chief Justice, after referring to the relevant statutory framework, observed (at 68-69 [73]): "The purpose of the legislative scheme is of considerable significance in determining the issue before the Court. The consequence of the factual finding is that an applicant for consent must prepare a species impact statement, in order to have the application 'determined'. The species impact statement enables the decision-making process of the consent authority to be better informed. This occurs both directly, by the supply of additional detailed information to the decision-maker in accordance with ss.110-113 of the Threatened Species Conservation Act . It occurs indirectly, by making such information available to those who may be minded to make submissions to the consent authority." 44 The Chief Justice then referred to the significance of the process of public consultation which is emphasised by this Court's decision in Helman and then continued (at 69): "76. It can readily be seen that a species impact statement when required, plays a critical role in the quality of the decision-making process, by ensuring that detailed information is available to primary decision-makers in a systematic and ordered way. This, in my opinion, makes it more likely that the legislature intended the circumstances which lead to the requirement to prepare a species impact statement, to be both objectively ascertained and essential. 77. The significance attached to a species impact statement, when required, is confirmed in the mandatory form of the introductory words of s.77(3): 'A development application shall …' . " 45 The Chief Justice concluded (at 73 [94]) (in a passage cited in part by the primary judge (at [73]), that taking into account the factors to which he had referred, the decision as to whether or not a species impact statement is required played such a significant role in the legislative scheme that it was appropriate to describe it as an "essential condition". It was thus a jurisdictional fact which the Land and Environment Court was obliged to decide for itself. Implicit in that conclusion was that being a jurisdictional fact, any consent granted in its absence was invalid. 46 It should be remembered that at the time Helman was decided, s.77(3) contained a number of subparagraphs of which (d) and (d1) related respectively to the circumstances where an environmental impact statement on the one and a species impact statement on the other was required to be prepared. On the other hand, subparagraphs (a) and (b) of s.77(3) required respectively that the application be made to the consent authority and in the prescribed form and manner. 47 At that time the prescribed form included in the case of non-designated development, the attachment of an SEE. As to those provisions, Handley JA observed in Helman (at 355-356): "Section 77(3) defines the form and content of such applications. Its requirements are mandatory in terms, being governed by 'shall' in each case. However, the content of these requirements vary. They include matters of form ('(b) … made in the prescribed form') and cost ((e) a fee determined by the authority or any prescribed fee). They also include matters of substance especially in (d) and (d1) which require certain applications to 'be accompanied by' an environmental impact statement or fauna impact statement."

This passage was referred to with approval by the Chief Justice in Timbarra at 73 [99]. 48 In the context of the present case the distinction which Handley JA drew in Helman between matters of form (the making of the development application in the prescribed form and manner) and matters of substance (the accompanying of the application by an environmental impact statement or species impact statement) is of significance given, as I have noted, that it was only as part of the prescribed form that an SEE was required with respect to an application for non-designated development. 49 Accordingly, the primary judge (at [75]) considered that the marked contrast between on the one hand the detailed provisions of the EPA Act and the 2000 Regulation relating to the contents of an required environmental impact statement or species impact statement, the public notification of a development application accompanied by the former statement and the right of objection and appeal vested in the public in respect of a development application for designated development and, on the other, the very limited contents required of an SEE was such that there was no foundation in either the EPA Act or the 2000 Regulation which would justify the inference that the requirement that an SEE accompany a development application had such a significant role in the legislative scheme as to be properly regarded as an "essential condition" or an "essential preliminary" (Timbarra) or a "condition precedent" (Helman) to the determination of that development application. 50 Nevertheless, his Honour recognised (at [77]) that the relevant objects and purposes of the EPA Act were doubtless promoted by the submission of a development application in which the likely environmental impacts of the proposed development had been addressed. However, although an SEE was the vehicle provided by the 2000 Regulation for the addressing of those impacts in the application, his Honour considered (at [78]) that it was necessary "to recognise the inherent limitations of an SEE which derived from the fact that satisfaction of the statutory requirement may be achieved by no more than the expression of the subjective and personal opinion of the applicant for development consent (which opinion may be no more than an unfounded or unsubstantiated assertion or belief." 51 His Honour remarked that such a mode of compliance would not be regarded as satisfactory but indicated that such an SEE would still fulfil the statutory mandate for its preparation provided it addressed, even in a desultory manner, the matters referred to in cl.2(4) of Pt 5 of Schedule 1 to the 2000 Regulation. 52 It is true that his Honour sought to emphasise that such a mode of compliance with the requirement to provide an SEE merely emphasised the possible outcomes that were created by the lack of regulation by the EPA Act or the 2000 Regulation of the content and credentials of an SEE in contrast to the comprehensive and objectively rigorous requirements for the content and credentialing of an environmental impact statement or a species impact statement. 53 If his Honour sought to suggest that there was no requirement of the 2000 Regulation with respect to the content of an SEE he was in error for cl.2(4) of Pt 1 of Schedule 1 to the 2000 Regulation requires that an SEE "must indicate" the environmental impacts of the development, how those impacts were identified and the steps to be taken to protect the environment or to lessen the expected harm to the environment. 54 Nevertheless, in my opinion, even accepting that error, his Honour was correct to emphasise the very general matters which an SEE "must indicate" on the one hand and what he referred to as the "comprehensive and objectively rigorous requirements for the content and credentialing of an environmental impact statement or a species impact statement". 55 In the foregoing circumstances, the primary judge (at [79]) concluded that an SEE, with its inherent limitations, made at best a very modest contribution to the attainment of the relevant objects and purposes of the EPA Act. Those objects and purposes were identified by the appellants as being the protection of the environment. Section 5(a)(vi) of the EPA Act states that one of the objects of the Act is to encourage "(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats."

But, as is implicit in his Honour's reasoning, it is self-evident that the protection of the environment in the extended sense referred to in s.5(a)(vi) takes on greater significance where the development proposed is designated development or development that is likely to significantly affect threatened species, populations or ecological communities of their habitats: see s.5A of the EPA Act. 56 Although I would not agree with his Honour's suggestion (at [79]) that the principal purpose and function of an SEE is to promote an environmental consciousness and responsibility on the part of a person preparing a development application and that a secondary ancillary purpose was to assist the consent authority in the discharge of its statutory duty of determining that application and taking into consideration its likely environmental impact, nevertheless there is force in his conclusion that, at its highest, the content of an SEE reflects the applicant's perception of likely environmental impacts and is usually a self-serving document of varying quality and objectivity. 57 Given his Honour's findings as to the purpose and object of the statutory requirements of an SEE to accompany a development application, he concluded (at [82]) that there was no legislative purpose discernible in the EPA Act to invalidate the grant of a development consent where the development application pursuant to which that consent was granted was unaccompanied by the required SEE. 58 The primary judge considered that that conclusion was reinforced by the provisions of cls.51 and 54 of the 2000 Regulation. He concluded (at [86]) that the existence of the powers referred to in those provisions provided a clear legislative indication that it was not the intention of the legislator to invalidate a development application that was not accompanied by any of the documents required by cl.50(1)(a). His Honour continued: "Rather, faced with a development application that is not accompanied by any of the required documents, the consent authority has the power under clause 51(1)(b) to reject the application or alternatively, the consent authority may request pursuant to clause 54(1) the applicant to provide the specified additional information (including ' information relating to any relevant matter referred to in s.79C(1)(b)-(e) ' : vide clause 54(3)). These powers provide the consent authority with practical and decisive solutions to any perceived problem of an inadequate or defective development application. Their ready availability strongly negates any intended recourse to legal concepts of ' nullity ' or ' invalid development applications '. " 59 His Honour thus considered that the existence of those powers vested in a consent authority was a sufficient safeguard against inadequately presented development applications and thus left little or no scope for the concept of any invalid application which was not the subject of s.78A(8). He therefore held that neither the scope nor purpose of the EPA Act or the relevant clauses of the 2000 Regulation indicated a legislative intention to invalidate a development application or a consent to any such application where there was a failure to accompany the application with an SEE.

Should the appellants' submissions on the appeal be accepted? 60 The appellants submitted that there was no difference between the purpose or object of an SEE on the one hand and an environmental impact statement or a species impact statement on the other in terms of its status and importance in achieving the object of the EPA Act of protecting the environment. This was exemplified by the fact that cll.2(e) and (f) of Pt 1 of Schedule 1 to the 2000 Regulation mandated that a development application should be accompanied by an environmental impact statement in the case of designated development, and a species impact statement in the case of land that is or is part of a critical habitat or development that is likely to significantly affect threatened species, populations or ecological communities or their habitats. 61 Accordingly, so the argument ran, if it was accepted jurisprudence that a consent was invalid if an application for a designated development was unaccompanied by an environmental impact statement or, if the development was likely to significantly affect threatened species etc., was unaccompanied by a species impact statement, why should the position be different if the development application was unaccompanied in the case of non-designated development by an SEE? All three statements were given equal significance in cl.2(1) of Pt 1 of Schedule 1. 62 Furthermore, cl.51(1)(d) empowered the consent authority to reject a development application within seven days of receipt if it was not accompanied by a document as specified in cl.2 of Pt 1 of Schedule 1 which included not only an SEE but also an environmental impact statement and a species impact statement where required. Accordingly, if as a result of Helman and Timbarra an environmental impact statement or a species impact statement were each "an essential condition" or an "essential preliminary" to the grant of a valid consent, it must logically follow that an SEE should be similarly characterised. 63 The appellants further submitted that if cl.54 of the 2000 Regulation empowered the consent authority to require additional information from an applicant with respect to the matters which were required to be indicated in an SEE pursuant to cl.2(4) of Pt 1 of Schedule 1, then it would be an odd result, given that cl.54(5) enabled an applicant to whom such a request was made to decline to provide it, that by the back-door (as it were) the obligation to provide an SEE (or for that matter an environmental impact statement or a special impact statement where appropriate) was dispensable. 64 In other words, unlike cl.51(3), which provides that an application rejected under that clause is taken for the purposes of the EPA Act never to have been made, cl.54(6) provides that although the applicant is taken to have notified the consent authority that the information will not be provided, the consequence of that refusal namely, that "the application may be dealt with accordingly", would not prevent the consent authority from granting consent notwithstanding the failure to provide the additional information in the form of an SEE, environmental impact statement or species impact statement. 65 In my opinion the appellants' submissions should be rejected. Thus clause 51(1)(b) is general in its application and applies to all the documents referred to in cl.2(1) of Pt 1 of Schedule 1 of which there are some twelve. Further, there is no obvious significance in the fact that pursuant to cl.51(1)(b) the consent authority may reject a development application which is unaccompanied, where otherwise required, by an environmental impact statement or a species impact statement: what is significant is that that rejection can extend to a development application which is unaccompanied by an SEE. 66 If the appellants' submissions are correct and failure to comply with cl.2 of Pt 1 of Schedule 1 results in an invalid development application, then a grant of consent to that application would be invalid even thought it omitted a site plan of the land or, if a site plan was included, it failed to comply with any of the matters required to be indicated on that plan pursuant to cl.2(2) of Pt 1 of Schedule 1. 67 The same observation can be made with respect to cl.2(3)(b) if the required sketch failed to show room sizes. Where does one draw the line? Is it an all or nothing situation? Handley JA in Helman drew the line between matters of procedure and form on the one hand and matters of substance on the other. Given the nature of an SEE compared with an environmental impact statement and a species impact statement, is the first a matter of form and the others matters of substance? 68 In one sense Handley JA answered that question as I have observed in [47] above where, perhaps unwittingly, he regarded as a matter of form the provisions of s.77(3)(b) that a development application should be made in the prescribed form and manner where that form required, in the case of non-designated development, the attachment of an SEE which addressed the matters referred to in Note 9 to the form. 69 Most telling is that it is only the obligation to submit an environmental impact statement and/or a species impact statement with a development application which is retained in the EPA Act itself, namely, in s.78A(8). All other "things … required to be submitted with" such an application are relegated to the regulations by s.78A(9). Thus, in my opinion, the singling out in s.78A(8) of an environmental impact statement and a species impact statement for particular attention evinces an intention on the part of the legislature that it is only those statements that must accompany a development application in the case of designated development on the one hand and development likely to significantly effect a threatened species etc., on the other on pain of a breach of that obligation including of any consent granted in their absence. 70 In this context the Court's attention was drawn to the provisions of s.80(11) which provide :

"The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined."

Further, the appellants drew attention to the regulation making power in s.105(1) which relevantly provides that the regulations make provision for and with respect to the following:

(e) the documents and information required to accompany development applications, including documents that will assist the consent authority in assessing the environmental effect of development;

(j) the form of statements of environmental effects and environmental impact statements;

(k) the documents and information required to accompany statements of environmental effects and environmental impact statements." However, in my view the fact that the regulations may make provision for and with respect to those matters is a neutral factor. It simply means that the provisions of the 2000 Regulation in question have been validly made. 71 The first appellant submitted that the primary judge's reasoning appeared to be along the lines that if the discretion to reject a development application pursuant to cl.51(1)(b) was not exercised when the application was unaccompanied by a required document, the consequence was that the consent authority could proceed to consider the application and grant consent notwithstanding the failure to comply with cl.50(1)(a) of the 2000 Regulation. It was submitted that "the dyslogic (sic) is obvious". 72 With respect I disagree. There is nothing inherently dyslogical if, in a particular case, the consent authority declines to exercise its power under cl.51(1)(b) to reject an application if it is unaccompanied by, say, an SEE. It may be prepared to grant consent to the application having properly taken into consideration the relevant matters referred to in s.79C(1)(b)-(e). Of course, if it does so in circumstances where there is a breach of s.78A(8)(a) or (b) then any consent granted to an application failing to comply with those provisions would be invalid as Helman and Timbarra demonstrate. 73 There is no logical reason, in my view, why a consent authority cannot grant consent to a development application that fails to be accompanied by information or documents specified in Pt 1 of Schedule 1 where the absence of that information or those documents is not in the particular case of such significance as to prevent it from performing its statutory duty under the EPA Act when determining the application. 74 There is every reason to accept the proposition that a consent authority would only reject a development application if it did not contain information or was not accompanied by a document specified in Pt 1 of Schedule 1 where it considered that the absence of that information or the non-provision of that document was relevant to its proper determination of the application. If the authority considers that the absence of particular information or documents which are otherwise required to be contained in or to accompany the application by cl.50(1)(a) of the 2000 Regulation does not prevent or hinder the performance of its statutory duties in determining the application, then there is no logical reason why it should not proceed to do so without exercising its powers under cl.51(1). 75 The same observation applies to cl.54. If additional information is required and not provided then, as cl.54(6) provides, the application "may be dealt with accordingly". Acting responsibly, the consent authority would reject the application if the absence of the requested additional information was considered necessary to enable it to properly perform its statutory functions. 76 The foregoing observations apply to an SEE. If the development application is for a development which the consent authority considers should be accompanied by an SEE to assist in the performance of it statutory functions, then it has the power to reject the application pursuant to cl.51(1)(b) where an SEE has not been provided. Alternatively, if the application is one where the nature of the development and its likely environmental impact (if any) is such that the consent authority considers that it is able to properly perform its statutory functions without the need for an SEE, there would be no reason in logic or principle why it should not do so without the legal consequence of any grant of consent to such an application being invalid. 77 As I have observed, the nature of the development applications referred to in s.78A(8)(a) and (b) fall into a different category which is no doubt why the mandating of such applications being accompanied by an environmental impact statement or a species impact statement as the case might require, was retained in the Act (although repeated in the 2000 Regulation) to emphasise the significance of those statements and to flag that the provision of those documents is, as has been held by this Court, an essential condition to the exercise by the consent authority of its power to grant consent to a development to which those provisions refer. 78 In this context it should be remembered that a development application which engages s.78A(8)(b) may nor may not be in respect of designated development. It was in Helman and Timbarra. But if it is not, then not only must the application be accompanied by a species impact statement as a requirement by s.78A(8)(b) but also it must be accompanied by an SEE as required by cl.50(1)(a) of the 2000 Regulation. It is apparent that the most significant environmental impact of an application for non-designated development which is required to be accompanied by a species impact statement is because the development is likely to significantly effect endangered species etc. One can therefore appreciate that the legislature, as this Court has held, intended that a consent granted to such an application in the absence of a species impact statement would be invalid. But it does not necessarily follow, logically or otherwise, that the absence of an SEE but not a species impact statement from such an application, was intended to have the same invalidating effect. It would be dyslogical if it did. 79 The foregoing observations are not intended to deny, as the Minister submitted, that like an environmental impact statement and a species impact statement, an SEE may well enhance the quality of the decision-making process by ensuring that, when determining a development application, the consent authority has before it all appropriate material to assist in the performance of its duty to take into consideration the relevant matters under s.79C. However, it is the degree of enhancement which is at issue. 80 The very nature of an environmental impact statement and a species impact statement prepared in accordance with what are detailed statutory requirements is, as the primary judge noted, of a different order than that of an SEE. It is for those reasons that they are treated differently by the legislation. 81 The Minister sought to rely upon the following passage from the judgment of Basten JA, with whom Handley JA and Hunt A-JA agreed, in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 where at 287 his Honour said: "33 Pursuant to clause 50(1)(a) of the Environmental Planning and Assessment Regulation 2000 (NSW) ("the EP&A Regulation") a development application must contain prescribed information and be accompanied by specified documents, as identified in Part 1 of Schedule 1 of the EP&A Regulation. Clauses 1 and 2 prescribe, respectively, the information to be included in the development application and documents to accompany the development application. In part, the accompanying documents are designed to provide a better indication, or at least an indication in a different form, of information required to be contained in the application. Thus, the first two specified documents are: '(a) a site plan of the land, (b) a sketch of the development.' 34 However, other accompanying documents, including a statement of environmental effects (par (c)) tend to serve a different purpose, namely providing information as to effects of a development which will be relevant to the matters to be considered by the consent authority under s 79C of the EP&A Act. In other words, some of the accompanying documents may properly be understood as providing information required for the identification of the development, whereas other documents fall into a different category. To that extent, there is force in the argument put by the Appellant that in identifying the development to which consent is being given, it will often be appropriate (and even necessary) for the consent authority to refer specifically to those accompanying documents which identify the nature and style of the proposed development." 82 The issue in that case was quite different to that in the present case. His Honour was not directing his mind to the essential differences between an SEE on the one hand and an environmental impact statement and species impact statement on the other. There can be no doubt that an SEE has the capacity to serve the purpose of providing information as to the effects of a development which would be relevant to the matters to be considered by the consent authority under s.79C of the EPA Act. But it does not follow from that fact alone that it was the intention of the legislature in the Project Blue Sky sense to invalidate a consent granted to a development application which was unaccompanied by an SEE. In particular, such a conclusion does not follow from his Honour's remarks which were made in a quite different context. 83 As was observed by Hemmings J in Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGERA 79 at 86, an environmental impact statement "is merely a tool to enable the consent authority to assess and determine the application": so also is an SEE, but a less reliable tool. 84 Thus, in MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581 at [61], Jagot J observed with respect to whether a particular SEE was sufficient to discharge the statutory obligation to provide it: "…The required content of a statement of environmental effects provided for by cl 2(4) of Sch 1 operates at a high level of generality. Such a document is required only to 'indicate' the specified matters. The specified matters are basically 'environmental impacts', 'expected harm to the environment' and steps to protect the environment from that harm. The Regulation leaves it to the author of the statement of environmental effects to identify for themselves whether there are any such 'environmental impacts' or 'expected harm'. The Regulation does not require the author of a statement of environmental effects to have any qualifications." 85 Having concluded that the SEE available to the council in that case was sufficient to discharge the statutory obligation to provide it, her Honour then proceeded to determine whether, had she reached a contrary conclusion, it was a purpose of the EPA Act and the 2000 Regulation that where a development application was not accompanied by an SEE so that there was a breach of cl.50(1)(a), any consent granted to that application would be invalid within the meaning of Project Blue Sky. 86 Her Honour referred to the decision of the primary judge in the present case to the effect that such a breach could not be classified as one giving rise to invalidity. She then proceeded to set out her own independent reasons as to why the statutory scheme supported that conclusion. They were as follows: "63. …All development under Pt 4 of the EPA Act except for designated development is subject to the requirement that a statement of environmental effects be lodged. Development expected to have the potential for significant environmental impacts has been separated into the designated development category, and is subject to a more onerous assessment scheme of regulation. The non-designated development class covers a vast range from the small and simple to the large and complicated. The different treatment of the two classes (designated and not designated) is clear. The terms of s 78A ("A person may, subject to the regulations…") indicate a permissive regime. The requirement for a statement of environmental effects is contained in the Regulation (s 78A of the EPA Act and cl 50(1)(a) of the Regulation, with Pt 1 of Sch 1). Contrast these provisions with the requirements for an environmental impact statement and species impact statement contained in the EPA Act that are expressed in mandatory terms - "a development application must…" (s 78A(8)). The public notification requirements for designated development are also contained in the EPA Act (s 79). The public notification requirements for non-designated development are left to the Regulation, environmental planning instruments and development control plans (s 79A). The Regulation only provides for notification of advertised development (Div 7 of Pt 6). Hence, as in this case, the notification requirement arose from the terms of a development control plan. 64 The Regulation contains detailed provisions for the preparation of environmental impact statements by persons holding professional qualifications. These persons are required to certify both that the statement contains all available information that is relevant to the environmental assessment of the development to which the statement relates, and that the information contained in the statement is neither false nor misleading. An environmental impact statement may only be prepared after the applicant for consent has consulted with the Director-General about the form and content of the statement (Div 4 of Pt 6). There are no equivalent obligations with respect to a statement of environmental effects. Indeed, any person may prepare a statement of environmental effects. The required content of a statement of environmental effects is merely to "indicate" certain matters (cl 2(4) of Pt 1 to Sch 1). Those matters are expressed at a high level of generality. The identification of any impacts is a matter for the author of the document. 65 Once it is recognised that any person can prepare a statement of environmental effects, and that the identification of environmental impacts and steps to protect against expected harm are within the discretion of the author, the relatively limited role of a statement of environmental effects in the statutory scheme is apparent. The capacity for consent authorities to request further information (cl 54) and the inescapable obligations of consideration imposed on consent authorities in s 79C(1) support this conclusion. 66 The above matters disclose that a statement of environmental effects cannot and does not play an equivalent role to an environmental impact statement in the statutory scheme. A document that may be prepared by any person, with such flexibility in terms of content, cannot be characterised as essential to the public participation and assessment requirements and objects of the EPA Act. Moreover, there is obviously room for debate about what is and is not a statement of environmental effects, depending on the nature of the development in question. Invalidating consents as of course because of the absence of a statement of environmental effects, in this context, could not be seen as promoting the objects of the EPA Act. Serious public inconvenience would result if all consents for development, no matter how insignificant, were invalid because the application lacked a statement of environmental effects, and notwithstanding a thorough consideration by the consent authority of all relevant matters under s 79C. 67 Nothing I have said should be understood as suggesting that the obligation to provide a statement of environmental effects has been set at naught. The obligation remains. Applicants who fail to comply with the obligation run numerous risks. The consent authority may reject the development application outright in reliance on cl 51 of the Regulation. The consent authority may require further information and "stop the clock" delaying the accrual of appeal rights under cl 54. The consent authority may exercise its discretion to refuse to grant development consent having regard to s 79C(1) because of inadequate information. Invalidity of the consent, however, cannot be seen as a purpose of the legislation by reason of the absence of a statement of environmental effects." 87 If I may say so with respect, her Honour's reasons as set out above encapsulate in a far more logical and concise manner those which I have sought to advance in reaching the same conclusion. I therefore gratefully adopt her Honour's reasoning which I find most persuasive. 88 At the end of the day, as the respondents submitted, the marked distinction between the requirement for all development applications for non-designated development to be accompanied by an SEE on the one hand and the special classes of development application referred to in s.78A(8)(a) and (b) of the EPA Act which are required to be accompanied by an environmental impact statement or a species impact statement (as the case may be) on the other, distinguishes the present case from those of Helman and Timbarra. Applying both a contextual and purposive interpretive approach to the combined operation of the provisions of ss.78A(8) and (9) of the EPA Act and cll.50(1)(a) and 51(1)(b) and Pt 1 of Schedule 1 to the 2000 Regulation does not reveal any intent or purpose on the part of the legislature that failure to provide an SEE, albeit constituting a breach of cl.50(1)(a), shall invalidate any consent granted to a development application in respect of which no SEE has been provided. 89 Given the powers of a consent authority in cls.51 and 54 of the 2000 Regulation (and particularly the former) and the essential differences to which both the primary judge and Jagot J have referred between an SEE on the one hand and an environmental impact statement and species impact statement on the other, I find it impossible to ascertain a clear legislative intention to invalidate every consent granted to a development application which is unaccompanied by an SEE. 90 Although I have no difficulty in accepting that the objective of the EPA Act to protect the environment would be prejudiced by the failure of a development application to be accompanied by an environmental impact statement or a species impact statement in circumstances where those statements are mandated by s.78A(8), in my opinion the same cannot be said with respect to the failure of a development application to be accompanied by an SEE, especially in circumstances where the consent authority has not considered that the absence of that document warrants rejection of the application pursuant to cl.51(1)(b) of the 2000 Regulation.

Conclusion 91 For the foregoing reasons, I am of the opinion that the appellants have failed to establish error on the part of the primary judge in his conclusion that the consent granted by the Council to Development Application 373/2003 on 13 September 2004 was invalid by reason of its failure to be accompanied at any relevant time by a statement of environmental effects. I would therefore propose that the appeal be dismissed with costs. 92 YOUNG CJ in EQ: I agree with Tobias JA.

93 CAMPBELL J: I agree with Tobias JA. **********

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