(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.