Davis v Gosford City Council

Judgment 1BEAZLEY P: I have had the advantage of reading in draft the reasons of Preston CJ of LEC. I agree with his Honour's reasons and with his proposed orders. 2WARD JA: I have had the opportunity of reading in advance the comprehensive reasons of Preston CJ of LEC, with which I agree. I also agree with the orders that his Honour has proposed. 3PRESTON CJ OF LEC:

Nature of appeal and outcome The appellants, Raymond and Susanne Davis, applied for development consent under the Environmental and Planning and Assessment Act 1979 ('EPA Act') for an integrated resource recovery facility on their land at 168 Somersby Falls Road, Somersby, within the Somersby Industrial Park. The respondent, Gosford City Council, refused consent. The appellants appealed, under s 97 of the EPA Act, to the Land and Environment Court against the Council's refusal. The appeal was dismissed by two Commissioners of the Court, Commissioners Brown and Fakes: Davis v Gosford City Council [2012] NSWLEC 1329. The appellants appealed, under s 56A(1) of the Land and Environment Court Act 1979 ('the Court Act'), against the decision of the Commissioners on questions of law. This appeal was dismissed by a judge of the Court, Justice Pepper: Davis v Gosford City Council [2013] NSWLEC 49. 4The appellants sought leave to appeal, under s 57(4)(c) of the Court Act, against the judge's decision. This Court granted leave to appeal on 22 October 2013 limited to two matters. The first matter concerned the interrelationship of s 5A and s 79C of the EPA Act for the assessment of the effect of the proposed development on threatened species or their habitat. The second matter concerned the obligation of a consent authority to take into account the grant of concurrence by the Director-General of the former Department of Environment, Climate Change and Water ('DECCW') under s 79B(3) of the EPA Act. The appellants filed their Notice of Appeal dated 25 October 2013 raising five grounds of appeal: grounds 1-3 concerned the first matter and grounds 4 and 5 concerned the second matter. 5I consider that the appeal should be dismissed as grounds 1-3 are based on an erroneous construction and application of ss 5A and 79C of the EPA Act and grounds 4 and 5 are based on an erroneous construction and application of s 79B(3) of the EPA Act. The unsuccessful appellants should pay the successful respondent's costs of the appeal in this Court.

The litigation history and decisions appealed against 6The appellants' proposed development involved clearing native vegetation that was habitat for, amongst other flora and fauna, a threatened species of fauna, the Eastern Pygmy Possum. The proposed development of the integrated resource recovery facility fell within a type of development declared to be designated development, namely waste management facilities or work. A development application in respect of designated development is required to be accompanied by an environmental impact statement ('EIS') (see s 78A(8)(a) of the EPA Act). Furthermore, a development application in respect of development on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, is required to be accompanied by a species impact statement ('SIS') prepared in accordance with Div 2 of Pt 6 of the Threatened Species Conservation Act 1995 ('TSC Act') (s 78A(8)(b) of the EPA Act). 7The appellants lodged, on 26 July 2011, a development application for the proposed development, accompanied by an EIS, but not a SIS. The EIS included a flora and fauna assessment report that concluded that the proposed development was not on land that was, or was part of, critical habitat and was not likely to significantly affect threatened species, populations or ecological communities, or their habitats, including the Eastern Pygmy Possum. 8The Council rejected the development application as being invalid on the ground that a SIS was required by s 78A(8)(b) of the EPA and cl 51(2)(b) of the Environmental Planning and Assessment Regulation 2000 ('the EPA Regulation'). 9On 8 September 2011, the appellants commenced proceedings in Class 4 of the Court's jurisdiction seeking declaratory relief that their development application was not required to be accompanied by a SIS because the application was not in respect of development that was likely to significantly affect threatened species, populations or ecological communities, or their habitat. 10On 21 December 2011, the appellants filed an appeal against the Council's deemed refusal of the development application. The appeal was adjourned pending the determination of the declaratory proceedings. 11On 27 March 2011, Lloyd AJ held that, on the evidence before him at that time, a SIS was not required because the proposed development was not likely to significantly affect either of the two threatened species the subject of the proceeding before him, including relevantly the Eastern Pygmy Possum: Davis v Gosford City Council [2012] NSWLEC 62 at [38]. Lloyd AJ held that the Council's rejection of the development application was null and void and that the development application made on 26 July 2011 remained to be considered on its merits (at [38]). 12The appeal against the Council's deemed refusal of the development application then resumed and was heard by the two Commissioners of the Court. The Council could no longer contend that the development was "likely to significantly affect" the threatened species of the Eastern Pygmy Possum but it did contend that it would have "an unacceptable and irreversible impact" upon the Eastern Pygmy Possum (contention 4 of the Council's amended statement of facts and contentions). 13The Commissioners concluded that the likely impact of the development on the Eastern Pygmy Possum warranted refusal of the appellants' development application (at [53]). The Commissioners accordingly dismissed the appeal (at [68]). 14The Commissioners summarised the competing evidence of the ecological experts called by the parties. The experts agreed, and the Commissioners found, that 12 individual Eastern Pygmy Possums had been recorded on or in an area closely adjoining the land to be cleared for the proposed development (at [26]) and that the proposed development would involve removal of the best quality habitat (comprising mature Banksia thicket) currently present on the land for the Eastern Pygmy Possum (at [27], [31]). 15The Commissioners recorded the differences in the experts' opinions concerning whether the potential habitat remaining after clearing of the prime habitat would significantly affect the survival of the local population of the Eastern Pygmy Possum (at [28], [30], [31]) and concerning the likely success of the appellants' expert's suggested amelioration and mitigation measures for the survival of the local population of the Eastern Pygmy Possum (at [29], [32], [33]). In assessing the likely significance of the effect of the proposed development on the Eastern Pygmy Possum and its habitat, the applicants' expert did, but the Council's expert did not, undertake an assessment in accordance with s 5A of the EPA Act. 16The Commissioners concluded: We accept that with the benefit of the site inspection, the expert evidence and considering s 79C(1)(b) of the EPA Act as to "the likely impacts of that development, including environmental impacts on ... the natural environment(s) ... in the locality", we are satisfied that the impact of the proposal on the Eastern Pygmy Possum is unacceptable for a number of reasons." (at [39]). 17The Commissioners then set out six reasons. 18Although there were statements that suggested that the Commissioners had found that the proposed development was likely to have a significant effect on the threatened species of the Eastern Pygmy Possum or its habitat, the Court below held that there was no determination of likely significant effect and the appellants on the appeal to this Court no longer contended otherwise. The Court below held that the Commissioners instead found, as they stated in [52], that "the proposal, pursuant to s 79C(1)(b) of the EPA Act, will likely unacceptably impact on the Eastern Pygmy Possum in the locality". 19The appellants appealed against the Commissioners' decision on questions of law. Of relevance to the appeals to this Court were appeal grounds 1 and 2. Appeal ground 1 was that the Commissioners had erred in their interpretation and application of s 79C(1)(b) of the EPA Act. The appellants had argued that the Commissioners had erred in law by inquiring into and making positive findings of fact concerning the "significant effect" of the proposed development on the Eastern Pygmy Possum contrary to the inquiry mandated by s 79C(1)(b) of the EPA Act. The Court below rejected that argument for two reasons: First, the challenge is misconceived insofar as nowhere have the Commissioners made positive findings of fact concerning any alleged 'significant effect' on the Eastern Pygmy Possum contrary to the decision of Lloyd AJ or the inquiry mandated by s 79C(1)(b). At all times the Commissioners asked themselves, in my view, the correct question, namely, what were the likely impacts of the proposed development including environmental impacts on the natural environments in the locality (s 79C(1)(b) of the EPAA). This is the precise question they asked at [39] of their decision. It is reinforced by their reference to s 79C(1)(b) at [40] and was correctly articulated and applied at [52] and [53] of their decision. (at [34]). Second, the reasoning was germane to the criticism directed at Ms Ashby's evidence, that her evidence ought not to be accorded any, or any determinative, weight because she did not undertake a seven-part assessment in accordance with s 5A of the EPAA. In stating that they were 'satisfied that her oral evidence and the substance of her report legitimately raise the question of whether there is likely to be a significant effect on a threatened species, population, ecological community or their habitats', it appears that the Commissioners were stating that Ms Ashby's evidence nevertheless achieved the same practical effect as conducting a seven-part assessment under s 5A (at [36]). 20The Court below continued: Just as I do not accept that the Commissioners made a positive finding that the proposed development would be likely to have a 'significant effect' on the Eastern Pygmy Possum, I likewise do not accept that the Commissioners introduced into s 79C(1)(b) any impermissible consideration of the concept of 'significant effect', as submitted by the applicants, and therefore, took into account an irrelevant consideration. For the reasons discussed above, the Commissioners correctly framed the issue at [39] (and see also at [40]) which leads to the conclusion that 'pursuant to s 79C(1)(b) of the EPA Act' the proposal 'will likely unacceptably impact on the Eastern Pygmy Possum in the locality' (at [52]). The applicants' argument cannot be maintained (at [37]). 21Appeal ground 2 was that the Commissioners failed to take into account a mandatory relevant consideration, namely, the concurrence issued by the Director-General of the DECCW when determining the appeal. Under s 79B(3)(b) of the EPA Act, development consent cannot be granted for development that is likely to significantly affect a threatened species, population or ecological community, or its habitat, without the concurrence of the Director-General. Under cl 64 of the EPA Regulation, the Director-General, as a concurrence authority, may, by written notice given to the consent authority, inform the consent authority that concurrence may be assumed, subject to such qualifications or conditions that are specified in the notice. 22In this case, the Director-General gave written notice to the Council informing it that concurrence may be assumed "for permissible development (as per the SIP [Somersby Industrial Park] Local Environmental Plan) of those lands not identified in Figure 4.1 of the draft management plan (Version 5, June 2005) as management zones for threatened species in accordance with cl 64 of the EP&A Regulation 2000 provided the conditions in Attachment 1 of this letter are met." The Eastern Pygmy Possum was one of the threatened species identified in the draft management plan and therefore in the written notice. 23The appellants asserted that the relevant land on which the proposed development would occur did not fall within an area identified in Fig 4.1 as being a management zone for the Eastern Pygmy Possum. 24The Court below rejected this ground of appeal on two bases. The first was on the basis of the earlier finding "that the Commissioners neither inquired into, nor made positive findings of fact concerning, an alleged "significant effect" on the Eastern Pygmy Possum" (at [40]). In effect, because the Commissioners did not find that the proposed development was likely to significantly affect the threatened species of the Eastern Pygmy Possum or its habitat, there was nothing to which the Director-General could concur. The second basis was that counsel for the appellants in the hearing before the Commissioners "expressly and repeatedly told the Commissioners that the concurrence was irrelevant." The Court below considered that submission to be "correct in light of the finding made by Lloyd AJ that a species impact statement was not required pursuant to s 78A(8)(b) because the proposed development was not likely to significantly affect the two threatened species the subject of the proceeding before him." (at [41]). 25The Court below continued: Accordingly, although a concurrence had been issued by the Director-General of the Department of Environment and Conservation pursuant to cl 64 of the Regulations, it was unnecessary for the Commissioners to have regard to the concurrence (cf Michel Projects Pty Ltd v Randwick Municipal Council (1982) 46 LGRA 410). It is for this reason that there is, quite properly, no reference whatsoever to the concurrence in the judgment delivered by the Commissioners. (at [42]).

The relevant statutory framework for development assessment 26Environmental planning instruments made under the EPA Act, which include local environmental plans, zone land and specify development that may be carried out on land without development consent or with development consent or that is prohibited in each zone (see ss 76, 76A and 76B of the EPA Act). 27A person may apply to a consent authority for consent to carry out development which an environmental planning instrument specifies may not be carried out except with consent, but not for development which an environmental planning instrument specifies may be carried out without the need for consent or development which is prohibited (s 78A(1) of the EPA Act). 28The form of application and the manner of applying for development consent are specified by s 78A of the EPA Act and cl 50 and Pt 1 of Sch 1 of the EPA Regulation. The development application must contain the information, and be accompanied by the documents, specified in Pt 1 of Sch 1 of the EPA Regulation (see s 78A(1), (8) and (9) of the EPA Act and cl 50(1)(a) and Pt 1 of Sch 1 of the EPA Regulation). Amongst the information the development application must contain is "an indication as to whether the development is likely to significantly affect threatened species, populations or ecological communities, or their habitats, unless the development is taken to be development that is not likely to have such an effect because it is biodiversity compliant development." (cl 1(1)(e) of Pt 1 of Sch 1 of the EPA Regulation). 29The EPA Act requires assessment of the impacts of the proposed development on the environment. The environment is defined broadly to include "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings." (s 4(1) of the EPA Act). 30The level or degree of environmental assessment, the form in which it must be prepared, and the content of the environmental assessment report vary depending on the type of development and its environmental impacts. 31For development under Pt 4 of the EPA Act, the main classification by type of development is between designated development and development other than designated development. For development declared to be designated development (see s 77A(1) of the EPA Act and cl 4(1) and Sch 3 of the EPA Regulation), a development application must be accompanied by an EIS in the form prescribed by the EPA Regulation (s 78A(8)(a) and cl 50(1)(a) and cl 2(1)(e) of Pt 1 of Sch 1 of the EPA Regulation). Schedule 2 of the EPA Regulation prescribes the form and content of an EIS. Amongst the matters which an EIS must include are: a statement of the objectives of the development; an analysis of feasible alternatives to carrying out of the development; an analysis of the development; including a full description of the development, a general description of the environment likely to be affected by the development, together with a detailed description of those aspects of the environment that are likely to be significantly affected, the likely impact on the environment of the development, and a full description of the measures proposed to mitigate any adverse effects of the development on the environment; and the reasons justifying the carrying out of the development, having regard to biophysical, economic and social considerations, including the principles of ecologically sustainable development (which include the precautionary principle, inter-generational equity, conservation of biological diversity and ecological integrity, and improved valuation, pricing and incentive mechanisms). (cl 7(1) and (4) of Sch 2 of the EPA Regulation). 32For development other than designated development or State significant development, the development application must be accompanied by a statement of environmental effects (cl 50(1)(a) and cl 2(1)(c) of Pt 1 of Sch 1 of the EPA Regulation). A statement of environmental effects is a less detailed and comprehensive form of environmental assessment than an EIS. A statement of environmental effects must indicate, amongst other matters, the environmental impacts of the development, how the environmental impacts of the development have been identified, and the steps to be taken to protect the environment or to lessen the environmental harm to the environment (cl 2(4) of Pt 1 of Sch 1 of the EPA Regulation). 33The environmental assessment required also varies according to the type of environmental impacts, in particular whether the development is likely to impact upon the threatened species, populations or ecological communities, or their habitats. Threatened species, populations and ecological communities are those species, populations and ecological communities listed as threatened under the TSC Act. The EPA Act requires the particular form of environmental assessment of a SIS to accompany a development application if the development either is on land that is, or is part of, critical habitat, or is likely to significantly affect threatened species, populations or ecological communities, or their habitats (s 78A(8)(b) and cl 50(1)(a) and cl 2(1)(f) of the EPA Regulation). The SIS is required to be prepared in accordance with Div 2 of Pt 6 of the TSC Act (see s 78A(8)(b) of the EPA Act). 34In determining whether the second limb of the threshold test for requiring a development application to be accompanied by a SIS is met, the matters in s 5A of the EPA Act must be taken into account. Section 5A(1) provides: For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) each of the factors listed in subsection (2), (b) any assessment guidelines. 35The factors listed in subsection (2) are sevenfold. However, not all of the factors will apply in any particular case, some only apply to threatened species, others to endangered populations, and others still to endangered ecological communities. The assessment guidelines are those issued and in force under s 94A of the TSC Act or s 220ZZA of the Fisheries Management Act 1994 (s 5A(3) of the EPA Act). 36The statutory requirements for an EIS or SIS to accompany a development application have been held to be jurisdictional facts; they are essential preconditions that must be satisfied in order to enliven the power of the consent authority to determine a development application for designated development or development that is on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, as the case may be: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55. 37After a development application has been lodged with the consent authority, there are various procedures for public participation and consultation, depending on the type of development and its environmental impacts. For development on land that is, or is part of, critical habitat, or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, the consent authority must seek the concurrence of the Director-General of DECCW (see s 79B(3) of the EPA Act and cl 59 of the EPA Regulation). The consent authority is precluded from granting development consent to such development without the concurrence of the Director-General (s 79B(3) of the EPA Act). 38The concurrence authority may grant or refuse concurrence to a particular development application (cl 62 of the EPA Regulation). Alternatively, the concurrence authority may, by written notice given to the consent authority, inform the consent authority that concurrence may be assumed, subject to such qualifications or conditions as are specified in the notice (cl 64(1) of the EPA Regulation). A consent granted by a consent authority that has assumed concurrence in accordance with a notice under cl 64 is as valid and effective as if concurrence had been granted (cl 64(2) of the EPA Regulation). 39The consent authority must evaluate the development application (including any accompanying documents) to determine whether to grant or refuse consent. Section 79C(1) of the EPA Act prescribes the matters that must be taken into account in determining the development application. Section 79C(1) provides: In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 40For the purposes of s 79C(1)(a)(iv), cl 92 of the EPA Regulation prescribes additional matters to be taken into consideration. One of these is the provisions of the Government Coastal Policy (where relevant). 41The consent authority determines a development application by granting consent, either unconditionally or subject to conditions, or refusing consent (s 80(1) of the EPA Act). Various types of conditions of consent may be imposed: see, for example, s 80(3), s 80A(1), (2) and (4)-(6) of the EPA Act. One requirement of importance is that a condition of development consent must relate to any matter referred to in s 79C(1) of relevance to the development the subject of the consent (s 80A(1)(a)). 42Where concurrence was required before development consent could be granted, such as the concurrence of the Director-General of DECCW for development 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, "a consent authority that grants consent to the carrying out of development for which a concurrence has been granted must grant the consent subject to any conditions of the concurrence". (Section 79B(9) of the EPA Act).

The appellants' arguments on the appeal 43The appellants' grounds of appeal in this court fall into two categories: grounds 1-3 concern the interrelationship of ss 5A and 79C of the EPA Act; and grounds 4-5 concern the obligation of a consent authority to take into account any concurrence of the Director-General under s 79B(3) of the EPA Act.

Assessment of impact on threatened species 44Grounds 1-3 alleged that the Commissioners and the Court below erred on the standard or degree of impact on the threatened species required to be demonstrated before a development application could be refused on that ground and the method of assessment of that impact that is permitted by the EPA Act. 45Under ground 1, the appellants noted that a consent authority is required under s 79C(1)(b) to take into account in determining a development application for a development, "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality". The appellants' argued that no other criterion mentioned in s 79C(1) invites consideration of the impacts on threatened species, and, therefore, if such impacts are to be cited as the sole ground of refusal of a development application, it must be through the gateway of s 79C(1)(b). 46The appellants noted that s 79C does not provide any guidance as to how such impacts are to be assessed. However, s 5A of the EPA Act does deal specifically with threatened species, populations and ecological communities. The appellants relied on the chapeau of s 5A(1) that provides: "For the purposes of this Act, and in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats". The appellants relied on the reference to s 79C of the chapeau of subs (1). The appellants submitted that the decision to identify s 79C as one of those sections in the administration of which it is compulsory to have regard to the factors in s 5A was a deliberate one taken in a context where s 79C(1)(b) said no more than that the consent authority was to have regard to likely impacts of the development on the natural environment (at [22] of the appellants' written submissions). 47The appellants' submitted that the legislative history of the treatment of threatened species in the EPA Act assists in the interpretation of s 79C and s 5A and the relationship between them. The appellants' summary of this legislative history was as follows: Prior to 1995 there was no reference to threatened species in the EPAA. At that time the matters to be considered by the consent authority were set out in s 90 of the Act. Then in 1995 the Parliament enacted a series of amendments. First it passed the Threatened Species Conservation Act 1995 ('the TSC Act'). By a schedule to that Act, it amended the EP&A Act. Section 5A was introduced in its current form save that the list of other sections for the purpose of which the new provision must be taken into account then read '77, 90 and 112'. Section 90 was amended to include, among other things, consideration of 'significant effect' on threatened species or their habitat. It was therefore clear at that stage that the only relevant consideration for a consent authority under s 90 in a case where threatened species were concerned was whether there would be a 'significant effect' on threatened species, with the question to be determined by reference to s 5A. Then, in 1997 the EP&A Act was extensively amended. Section 5A was retained unchanged, except for an amendment to the list of other sections of the Act referred to in the opening words of s 5A. Specifically the references to ss 78A, 79B and 79C in s 5A were added at that time. The changes to the parts of the Act dealing with the assessment of development applications were more extensive. Section 90 was repealed and s 79C introduced. Section 79C(1)(b) was in identical terms to those which appear today. Accordingly, any specific obligation on the consent authority to consider likely significant effect on threatened species was removed, having subsisted for less than two years. In its place came the current requirement to consider 'likely impacts'. But that was controlled by the obligation in s 5A when considering s 79C to have regard to the factors listed in the earlier section. It follows that there has never been a time when the words 'significant effect' appeared in s 79C. At all times when the current preamble to s 5A, requiring those factors to be taken into account when administering s 79C, has been in place, s 79C(1)(b) has been in its current form. The result is that although the description of the evaluation has gone from the specific in the short-lived s 90 ('significant effect on threatened species or their habitats') to the more general s 79C(1)(b), s 5A continues to require a consideration in finding of significant effect. (at [19]-[21] of appellants' written submissions). 48The appellants therefore contended that it is "a requirement that before a development application can be rejected on the sole ground that the environmental impact of the development was upon a threatened species or its environment there must be consideration of whether that impact amounts to a 'significant effect'. Otherwise, the inclusion of s 79C in the list of sections in the preamble to s 5A is mysterious" (at [23]). 49The method of consideration of whether the impact on the threatened species amounts to a significant effect, the appellants submit, is by having regard to the factors in s 5A (at [20]). Put another way, the appellants argued that "s 5A influences the interpretation of s 79C(1)(b) in such a way as to require that the standard or degree of impact on the threatened species necessary to trigger rejection of the application on the sole ground of its environmental impact on that species, is the "significant effect" standard of s 5A". (at [27]). In short, the appellants argued that only a finding of significant effect permits refusal of a development application on the basis of the impact on threatened species. 50The appellants argued that neither the Commissioners nor the Court below asked or answered the correct question. The appellants submitted: Pepper J's statement that the 'correct question' for the purpose of s 79C(1)(b) was unaffected by s 5A discloses error. Her Honour failed to have any regard to the fact that s 5A makes it compulsory, when administering s 79C to have regard to s 5A criteria which include the relevant standard of 'significant effect'. Her Honour in effect accepted a contention by the respondent Council that s 79C(1)(b) operates entirely independently of s 5A such that a finding of an 'impact' on threatened species, assessed by means other than those set out in s 5A and of a lesser degree than 'significant effect', can constitute a sole ground for rejection of a development application. On that basis and that basis alone the current application was rejected. But that is directly contrary to the scheme of the legislation. As submitted above, there has never been a time when the words 'significant effect' appeared in s 79C. At all times when s 5A has directed the consent authority to have regard to the likelihood of significant effect on threatened species for the purpose of administering s 79C, the language of s 79C has been as it is today. Therefore the suggestion that they operate entirely independently of one another or that s 79C(1)(b) is capable of being satisfied without regard to s 5A must be rejected. (at [28] of the appellants' written submissions). 51Ground 2 is put in the alternative to ground 1. The appellants argued that even if they were to be wrong in arguing that only a finding of significant effect permits refusal of a development application, nonetheless the EPA Act "makes mandatory the consideration of 'significant effect', and a finding as to whether there has been such effect, as a stage on the journey towards the s 79C assessment". (at [33] of the appellants' written submissions). The appellants argued that the only permitted means by which a consent authority can have regard to an effect on threatened species less than a significant effect is after having first decided the question of whether there is likely to be a significant effect having regard to the factors in s 5A. 52The appellants submitted that the Commissioners did not undertake that task and the Court below failed to correct that error (at [34] of the appellants' written submissions). 53Ground 3 complains that neither the Council's expert witness nor the Commissioners had regard to the factors in s 5A in determining the effect of the development on the threatened species or its habitat. The appellants argued that the consent authority, and the Court exercising the functions of the consent authority on the appeal, was bound to have regard to the factors in s 5A in taking into account the impact of the proposed development on the threatened species and its habitat. The appellants argued that the Commissioners erred in treating the oral evidence of the Council's expert in support of a differently structured report as being "functionally equivalent" to a s 5A assessment, and the Court below erred in failing to correct that error (at [44] and [45] of the appellants' written submissions).

Consideration of concurrence 54Grounds 4 and 5 concern the question of the Director-General's assumed concurrence. Ground 4 asserted that where a concurrence has been granted, it is a necessary consideration for the decision-maker. Ground 5 asserted that where concurrence has been granted, the decision-maker is obliged to give effect to it unless that decision-maker identifies some countervailing consideration and determines that the countervailing consideration outweighs the concurrence (at [46] of the appellants' written submissions). 55The appellants argued that the Commissioners failed to consider the Director-General's concurrence and the Court below erred in not correcting that failure. The appellants submitted that the two bases given by the Court below for rejecting the appellants' argument were mistaken. The first basis - because there was no finding of significant effect, there was nothing to which the Director-General could concur - was mistaken for two reasons. First, the appellants argued (as they had under grounds 1-3) that only a significant effect on threatened species can be taken into account under s 79C. Therefore, the presence of a concurrence will always be relevant (at [52] of the appellants' written submissions). Second, the appellants' argued that the consent authority is obliged to mould the conditions of any development granted to the conditions of the concurrence: s 79B(9) of the EPA Act. The appellants submitted that this obligation is not confined to a case where the consent would not or could not be granted but for the concurrence. Every time a concurrence is in place, it is necessary for the consent authority to have regard to it at the very least for the limited purpose of a consideration of conditions (at [53] of the appellants' written submissions). 56The appellants submitted that the second basis of the Court below was also misconceived. The appellants submitted: Her Honour mistook a submission that a concurrence was only required if significant effect was alleged or proved, with a submission that a concurrence was only relevant if such an effect was found. The former submission was certainly made. The latter was not. The position of the appellants before the Commissioners, and before her Honour, was that [an impact on] threatened species could not be taken into account at all except by way of s 5A, but that if it was taken into account then the concurrence was relevant and indeed decisive. Her Honour failed to address that submission. (at [55] of the appellants' written submissions). 57The appellants submitted that consideration of the concurrence was a mandatory consideration. The powers of the Court under s 39(6)(a) of the Court Act did not relieve the Court from its obligation to take into consideration the concurrence: Michel Projects Pty Ltd v Randwick Municipal Council (1982) 46 LGRA 410 at 414 (at [60] and [61] of the appellants' written submissions). The Commissioners erred in failing to consider the concurrence and the Court below erred in holding that it was not mandatory. 58The appellants submitted, by ground 5, that the concurrence was not merely a necessary consideration for the decision-maker but had to be given effect to unless the decision-maker identified some ground for refusing the development application or a reason why the concurrence was ineffective. The appellants argued that the effect of a concurrence is to remove the consideration of that issue of the impact on threatened species from the consent authority and place it in the hands of the concurring authority. The appellants argued that the result must be that when concurrence is granted the consent authority is required to accept that that issue has been satisfactorily addressed. To permit the consent authority on the same information to reach a different conclusion to the concurring authority would be to render the entire concurrence process null (at [57] of the appellants' written submissions).

The respondent's arguments on the appeal 59At the outset, the respondent contended that the appellants' arguments on ground 3, concerning the failure of the Council's experts and the Commissioners to have regard to the factors in s 5A in assessing the likely effect of the proposed development on the Eastern Pygmy Possum, were outside the scope of the leave granted by this Court. However, if this Court permitted the arguments to be raised, the respondent contended that they would be rejected on the basis that they rely on an erroneous construction of the EPA Act and were not errors of law (at [4] and [5] of the respondent's written submissions).

Assessment of impact on threatened species 60The respondent submitted that the appellants' construction of s 5A and s 79C was incorrect. The respondent first focussed on s 5A. The text and context of s 5A show that it is intended to deal with two matters: "firstly, the administration of the named sections; and secondly, is to be used where the Act requires a determination of significant effect". (at [33] of the respondent's written submissions). 61The respondent noted that the term "administration" in the chapeau of s 5A(1) is not defined or otherwise used in any of the sections that it enumerates. However, the EPA Act does utilise the term in Pt 2 which deals specifically with the mechanics of how the EPA Act will work. The use of this term in that context, the respondent submitted, is consistent with the ordinary meaning of the word "administration" (referring to the Macquarie Dictionary definition) (at [34] of the respondent's written submissions). 62The respondent submitted that when this ordinary and natural meaning is applied to the word "administration" in s 5A, the intent of the provision becomes apparent: it is intended to deal with the mechanical provisions required by the EPA Act. The respondent submitted that the EPA Act provides a regime for administration of, inter alia, development control and assessment. This regime requires the interaction of different provisions of the EPA Act and the mechanism for how such provisions will interact. For the consideration of a development application such as the one the subject matter of this appeal, the EPA Act relevantly provides that: a. An environmental planning instrument may provide that specified development may not be carried out except with development consent: s 76A; b. Where development consent is required an application is to be made to the relevant consent authority: s 78A; c. Where the development for which consent is sought is designated development the application must be accompanied by an environmental impact statement: s 78A(8)(a); d. Where the development for which consent is sought "is likely to significantly affect" threatened species: i. a species impact statement (SIS) must "accompany" the development application: s 78A(8)(b); and ii. development consent cannot be granted without the concurrence of the Director-General of the Department of Environment, Climate Change and Water: s 79B(3)(b); e. In determining whether development is likely to have a significant impact on a threatened species the matters outlined in s 5A of the EPA Act must be taken into account (the so called 'seven part test'); f. In determining a development application the consent authority is to take into account the matters as are of relevance to the development the subject of the application as set out in s 79C. Relevantly in this case s 79C required a consideration of, inter alia, the likely impacts of the development including environmental impacts on the natural environment: s 79C(1)(b), (c) and (e). (at [35] of the respondent's written submissions). 63The respondent submitted that: The mechanical requirements (administration) disclosed by the interaction of these provisions is: s 78A and s 79B make provision for preconditions that must be satisfied in order that an application can be said to be a development application; and s 79C is limited only to considering a development application. The effect of the references in s 5A are therefore that the provisions of that section applied in the operation of ss 78A and 79B. If the requirements of ss 78A and 79B are not met it cannot be considered as a development application for the purposes of s 79C. (at [36] of the respondent's written submissions). 64The respondent also submitted: Further, the construction referred to above is consistent with the objects of the Act as contained in s 5A of the EP&A Act. The construction advanced by the respondent requires all impacts to be considered and weighed in the exercise of the discretion conferred by s 79C. The construction contended for by the appellants would create a class of impacts (namely those on threatened species), where consideration of those impacts would be precluded if they were less than an impact identified in s 5A as a significant effect; whereas any impact on a non threatened species would be able to be considered. This construction creates an unintended dichotomy of standards for merit assessment under s 79C [that] clearly runs contrary to the clear objects of the Act. The s 79C considerations are unconfined in their terms. If it was intended that the considerations operate differently in different circumstances relating to threatened species one would expect and require clear words of limitation. In this case an oblique reference in s 5A would be insufficient to alter the ordinary operation of the clear and unambiguous words of s 79C. (at [39] and [40] of the respondent's written submissions). 65The respondent took issue with the appellants' summary of the legislative history of s 79C and s 5A and the conclusions the appellants drew from their summary. The respondent submitted that the TSC Act impacted on the operation of the EPA Act and therefore consequential amendments to the EPA Act were made, including the introduction of s 5A and the insertion of a new mandatory consideration in s 90(c3) "whether there is likely to be a significant effect on threatened species ...". Reference was made to s 90 in the chapeau of s 5A(1) because s 90 required consideration of a development application. Section 77 was also mentioned because it made provision for what comprised a development application and when a SIS was required. When the EPA Act was amended in 1997 to substitute a reduced and general list of considerations in s 79C for the more numerous and specific considerations in the former s 90, the references in s 5A to ss 77 and 90 were merely updated to refer to the now relevant sections of s 78A and s 79C. (at [43] of the respondent's written submissions). 66The respondent submitted that there is nothing to suggest that the amendment of the heads of consideration from those in s 90 to those in s 79C, including the deletion of the previous consideration of the likely significant effect on threatened species, was intended to effect the statutory consequence contended for by the appellant. Rather, the language changed to more generalised heads of consideration - threatened species remain in the general context and did not require specific mention. (at [42] of the respondent's written submissions). 67The respondent concluded: A construction of the EP&A Act consistent with textual and contextual indicia and consistent with the purpose of the legislation does permit the refusal of an application in circumstances where there is something less than a significant effect on the threatened species. There is no warrant in the Act to adopt the approach advocated by the appellants. (at [44] of the respondent's written submissions).

Consideration of concurrence 68The respondent disputed both of the appellants' arguments concerning the Director-General's concurrence - the Commissioners were not bound to take the concurrence into account and they were not bound to approve the development to give effect to the concurrence. 69The respondent submitted that the concurrence was not relevant for three reasons: (a)Section 79B of the EPA Act only makes provision for the granting of concurrence as a necessary precondition to the grant of development consent. As the Commissioners were refusing development consent, there was no engagement with s 79B(9) which is the provision which requires that the concurrence be given effect to; (b)Development consent could not be granted to development that significantly affects a threatened species unless concurrence was obtained: s 79B(3) of the EPA Act. Lloyd AJ had found that the proposed development was not likely to have a significant effect on the threatened species concerned. On that basis, the provisions of s 79C were not engaged; and (c)The concurrence could only be assumed for development that met the conditions referred to in the concurrence. These included that the development not be within areas identified in Fig 4.1 of the draft management plan as being management zones to protect threatened species and their habitat at the Somersby Industrial Park. The respondent submitted that the proposed development did not comply as it was proposed within areas that were identified in Fig 4.1. Hence, the assumed concurrence did not apply (at [47] of the respondent's written submissions).

The appellants' arguments in reply 70The appellants rebutted the respondent's construction of ss 5A and 79C of the EPA Act. The appellants submitted: The construction outlined by the respondent (at [33] and following), if it is open at all, should not be accepted. It fails to give any weight at all to the inclusion of s 79C in the list of sections in the opening sentence of s 5A. The argument, as the appellant understands it, is that s 78A and s 79B are relevant to determining whether there is a 'development application' before the decision-maker at all, and that the only purpose of mentioning s 79C in s 5A is that s 79C is not engaged unless a development application is found to exist. But that outcome is achieved simply by the use of the words, in s 79C, 'in determining a development application ...'. Section 5A does not say that for the purposes of determining whether a development application exists, the following must be taken into account. It says that they must be taken into account in deciding whether there is likely to be a significant effect on a threatened species, and that that task must be undertaken in relation to, inter alia, s 79C. (at [10] of the appellants' submissions in reply). 71In relation to the legislative history, the appellants submitted that the change from s 90 to s 79C of the EPA Act was not intended to change the substance of the assessment undertaken, but only its form. Section 90 made explicit that to be relevant an effect on threatened species must be likely to be 'significant'. Section 79C made no change to that, as the inclusion of that section and the preamble to s 5A makes clear. It is still only a significant effect, and only an effect measured in accordance with s 5A criteria, that is relevant to s 79C (at [12] of the respondent's submissions in reply). 72In relation to concurrence, the appellants disputed that the proposed development was within any management zone relevant to the protection of the Eastern Pygmy Possum. The appellants accepted that an access road was proposed to be constructed through a management zone identified as relevant to the protection of a threatened species of flora, Hibbertia procumbens. But that was not relevant. The only relevant concurrence was the concurrence to the part of the development alleged to have an impact on the Eastern Pygmy Possum and that was entirely within a zone marked for industrial development and, therefore, to which the concurrence related (at [14] of the appellants' submissions in reply).

Assessment of impact on threatened species 73The appellants' construction of s 79C(1)(b), which founds appeal grounds 1-3, is erroneous. The construction is that an effect on threatened species, populations or ecological communities, or their habitats, which is not likely to be a significant effect, is not a relevant matter for evaluation under s 79C(1)(b) of the EPA Act and cannot found a ground of refusal of consent. 74Section 79C(1)(b) has no such limitation. First, the head of consideration in s 79C(1)(b) is expressed in words of high generality. The head of consideration refers to "the likely impacts" of the development, including "environmental impacts on ... the natural ... environments". The concept of environment is itself a broad one, including "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings". The head of consideration encompasses all likely impacts of the development on the natural environment, including on threatened species, populations or ecological communities, or their habitats, and not merely those impacts that attain the threshold of being a likely significant effect. The text of s 79C(1)(b), therefore, does not provide any warrant for the appellants' narrow construction. 75Secondly, the context of s 79C(1)(b) does not support the appellants' narrow construction. The likely effects of the development on threatened species, populations or ecological communities, or their habitats, may also arise for consideration elsewhere under s 79C(1) than under s 79C(1)(b). 76Section 79C(1) requires the matters of relevance in s 79C(1) to be taken into consideration "in determining a development application". The development application to be determined is the application made in accordance with s 78A of the EPA Act and cl 50(1) and Pt 1 of Sch 1 of the EPA Regulation. This application must contain the information and be accompanied by the documents specified by those statutory provisions. The information that must be included in the development application includes "an indication as to whether the development is likely to significantly affect threatened species, populations or ecological communities, or their habitats ..." (cl 1(1)(e) of Pt 1 of Sch 1 of the EPA Regulation). 77The documents that must accompany the development application include, for designated development, an environmental impact statement; for development other than designated development, a statement of environmental effects; and for development likely to significantly affect threatened species, populations or ecological communities, or their habitats, a species impact statement (cl 2(1)(c), (e) and (f) of Pt 1 of Sch 1 of the EPA Regulation). These documents require consideration, in varying degrees of specificity and in varying forms, of the environmental impacts of the development and the steps to be taken to protect the environment or lessen the expected harm to the environment. The environment includes threatened species, populations or ecological communities, or their habitats, and the environmental impacts of the development include the impacts of the development on threatened species, populations or ecological communities, or their habitats. 78As a consequence, determination of the development application necessarily involves consideration of information and documents concerning the effects of the development on threatened species, populations or ecological communities, or their habitats, irrespective of whether or not those effects attain the threshold of being likely significant effects. 79The other generic heads of consideration in s 79C(1) may also include the effects of the development on threatened species, populations or ecological communities, or their habitats. Under s 79C(1)(a), environmental planning instruments may require consideration of the effects on native flora and fauna that comprise threatened species, populations or ecological communities or their habitats. A number of State environmental planning policies concern native flora and fauna and their habitats. Examples are: State Environmental Planning Policy 14 - Coastal Wetlands; State Environmental Planning Policy 19 - Bushland in Urban Areas; State Environmental Planning Policy 26 - Littoral Rainforests; State Environmental Planning Policy 44 - Koala Habitat Protection; and State Environmental Planning Policy 71 - Coastal Protection. These policies aim to protect and preserve the particular natural environments concerned and their native flora and fauna, which may include threatened species, populations or ecological communities, or their habitats. The policies control the environmental impacts of development in these natural environments, including by requiring consideration of the environmental impacts in determining a development application or in granting concurrence. 80Local environmental plans may also prescribe matters to be considered in determining a development application, including the effects of the development on specified natural environments and the native flora and fauna and their habitats in these environments. The local environmental plan in this case, Gosford Local Environmental Plan 22, is an illustration. It identified ecologically significant land, including designating management zones for the protection of threatened species, riparian zones, and habitats and habitat links. The impacts of the development on these threatened species, riparian zones, habitats and habitat links are required to be considered in determining a development application for the development. 81Accordingly, a consent authority in determining a development application will be required to take into consideration the provisions of an environmental planning instrument that may require some kind of consideration of the effects of the development on threatened species, populations or ecological communities, or their habitats, irrespective of whether the effects attain the threshold of being likely significant effects. 82Under s 79C(1)(c), the suitability of the site for the development could include matters concerning threatened species, populations, ecological communities, or their habitats. The presence on the site of threatened species, populations or ecological communities, or their habitats, might make the site unsuitable. The concept of habitat is a broad one. It is defined in s 4 of the EPA Act to have the same meaning as in the TSC Act, namely, "an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes a biotic or abiotic component". The biotic components include the native flora and fauna. The abiotic components include the climatic, physiographic and edaphic features of the environment of the area. The particular abiotic and biotic components of the habitat may make the site proposed for development unsuitable, such as being subject to flooding, tidal inundation, subsidence, slip or bushfire. Consideration of the suitability of the site for the development, therefore, might involve consideration of the effects of the development on threatened species, populations or ecological communities, or their habitats, on the site. 83Under s 79C(1)(d), the submissions made in accordance with the EPA Act or the EPA Regulation may address the effects of the development on threatened species, populations or ecological communities, or their habitats. Submissions can be made in respect of development that is designated development or advertised development: see s 79(5) and s 79A(2) of the EPA Act and cl 91(2) of the EPA Regulation. The appellants' development in this case was designated development. A person may make a written submission with respect to the development application for designated development. Where the submission is by way of objection, it must set out the grounds of the objection. These grounds could include the effects of the development on any threatened species, population or ecological community, or its habitat, irrespective of whether those effects attain the threshold of being likely significant effects. The consent authority is bound to take all submissions received into consideration in determining the development application. 84Finally, under s 79C(1)(e), the public interest must be considered. The concept of the public interest is broad. It includes, in appropriate cases, the principles of ecologically sustainable development: Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10 at [121]-[124] and Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [42]-[43]. Ecologically sustainable development is defined in s 4 of the EPA Act as having the same meaning as it has in s 6(2) of the Protection of the Environment Administration Act 1991. In that subsection, the principles of ecologically sustainable development include the principle of "the conservation of biological diversity and ecological integrity - namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration" (s 6(2)(c) of the Protection of the Environment Administration Act 1991). Biological diversity means the diversity of life and is made up of the three components of genetic diversity (the variety of genes or units of heredity in any population), species diversity (the variety of species), and ecological diversity (the variety of communities or ecosystems) (see s 4 of the TSC Act). Hence, consideration of the public interest might involve, in an appropriate case, taking into account the principle that the conservation of biological diversity and ecological integrity should be a fundamental consideration. Threatened species, populations or ecological communities, and their habitats, are but some of the components of biological diversity. Consideration of the effects of the development on these components are not restricted to where there are significant effects - all effects need to be considered. 85The context in which s 79C(1)(b) occurs, therefore, does not provide any support for the appellants' construction that the effects of a development on threatened species, populations or ecological communities, or their habitats, can only be considered under the head of consideration of s 79C(1)(b), or that only likely significant effects on threatened species, populations or ecological communities, or their habitats, can be considered, and not effects less than likely significant effects. 86Thirdly, the reference to s 79C in the chapeau of s 5A(1) of the EPA Act does not demand construing s 79C(1)(b) in the manner contended for by the appellants. At the outset, s 5A in its terms states that it only applies "in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats". The EPA Act devised and uses this formulation of "whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats" for three purposes: first, to decide whether the particular form of environmental assessment of a SIS needs to be prepared; second, as a head of consideration; and third, to decide whether there needs to be consultation with or the concurrence of a public authority. 87For the first purpose, the statutory formulation is used to decide whether a development application for development needs to be accompanied by the particular form of environmental assessment of a SIS: see s 78A(8)(b) of the EPA Act and cl 50(1)(a) and cl 2(1)(f) of Pt 1 of Sch 1 of the EPA Regulation. The requirement for the particular form of environmental assessment of a SIS was introduced by the TSC Act (the concept of a particular form of environmental assessment for threatened species having first been introduced in the TSC's predecessor legislation, the Endangered Fauna (Interim Protection) Act 1991, ('EF (IP) Act') being a fauna impact statement for endangered fauna). There needed to be a test to decide when a SIS was required. The threshold test of whether the development was likely to significantly affect the threatened species, population or ecological community, or its habitat, was employed (following the similar test in the EF (IP) Act of requiring a fauna impact statement for likely significant effects on endangered species of fauna, which in turn followed the test in s 112 of the EPA Act for requiring an environmental impact statement for likely significant effects on the environment). 88The statutory formulation is used for a similar purpose to decide whether a SIS, or an EIS that includes a SIS, needs to be prepared, furnished to, and examined and considered by, a determining authority before carrying out, or granting an approval in relation to, an activity under s 112 of the EPA Act: see s 112(1) and (1B) of the EPA Act. 89The statutory formulation is also employed to decide whether an EIS in respect of a designated fishing activity under Div 5 of Pt 5 of the EPA Act needs to include a SIS: it will if the designated fishing activity is to be carried out in critical habitat or "is likely to significantly affect threatened species, populations or ecological communities, or their habitats": s 115N(2) of the EPA Act. 90For the second purpose, the statutory formulation is employed to add a head of consideration for a determining authority in its consideration of the effects of an activity, under s 111 of the EPA Act: s 111(4)(b). The statutory formulation also is used as one of the types of information that a development application must contain: cl 50(1)(a) and cl 1(1)(e) of Pt 1 of Sch 1 of the EPA Regulation. The consent authority must consider the development application (including the information it contains and the accompanying documents) in determining the development application: s 79C(1). The requirement to consider whether the development is likely to significantly affect threatened species, populations or ecological communities, or their habitats, was previously found in the former s 90 of the EPA Act. 91For the third purpose, the statutory formulation is employed to decide whether there needs to be consultation with and the concurrence of the Director-General of DECCW. Section 79B(3) provides that development consent cannot be granted for development that, inter alia, "is likely to significantly affect a threatened species, population or ecological community, or its habitat", without the concurrence of the Director-General. Similarly, s 115N(4) of the EPA Act employs the statutory formulation to decide whether the Fisheries Minister, before making a determination with respect to a designated fishing activity, needs to consult with the Minister administering the TSC Act. 92Section 5A provides matters that must be taken into account in deciding whether the statutory formulation is satisfied for these purposes. Although it is mandatory to take these matters in s 5A into account, they are not exhaustive of the matters that may be considered: there may be facts and circumstances relevant to the inquiry of whether the statutory formulation is satisfied which are not specifically contained in any of the matters in s 5A, and in particular in any of the factors in the seven part test in s 5A(2): Plumb v Penrith City Council [2002] NSWLEC 223 at [37]; BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [12]; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117 at [52]; Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48 at [85]. 93The factors in s 5A(2) and any assessment guidelines are intended to assist the decision-maker to decide whether the level or degree of effects on threatened species, populations or ecological communities, or their habitats, attain the threshold of being significant. The factors and assessment guidelines of relevance to the development or activity concerned must all be considered. A positive answer to any one or more of the seven factors in s 5A(2) does not necessarily mandate an affirmative answer as to whether there is likely to be a significant effect on a threatened species, population or ecological community, or its habitat, but equally does not preclude a negative answer to that question: Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [61]; Plumb v Penrith City Council at [36]; Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 at [83]; Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd at [86]. 94Section 5A does not apply and the factors and assessment guidelines referred to in s 5A provide no assistance for purposes other than to decide whether the effects of the development attain the threshold of being "significant". Hence, s 5A does not apply to decide whether there is any effect at all on threatened species, populations or ecological communities, or their habitats. 95With this explanation of the purpose and application of s 5A of the EPA Act, the reference to s 79C in the chapeau of s 5A(1) is entirely explicable. Section 79C and the other sections to which particular reference is made in s 5A(1) all employ, directly or indirectly, the statutory formulation of whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. For s 78A, it is for the purpose of deciding whether the development application needs to be accompanied by a SIS; for s 79B, it is for the purpose of deciding whether there needs to be consultation with and the concurrence of the Director-General of DECCW; for s 79C, it is for the purpose of deciding the information required to be contained in, and the documents required to accompany, the development application which is to be determined; for s 111, it is a matter to be considered; and for s 112, it is for the purpose of deciding whether there needs to be a SIS, or an EIS that includes a SIS. 96In deciding whether the statutory formulation is satisfied for each of these purposes, the decision-maker must take into account the factors and the assessment guidelines in s 5A. It is in this sense that s 5A(1) uses the words "in the administration of". The factors and assessment guidelines in s 5A are used in the administration of the sections to decide whether the statutory formulation is satisfied for the various purposes of the sections, such as whether a SIS is needed, or a matter needs to be considered, or whether consultation or concurrence is required. 97This construction of s 5A and s 79C is supported by the legislative history. 98At its commencement, the EPA Act did not deal particularly with threatened species, populations or ecological communities, or their habitats, or require a particular form of environmental assessment, such as a SIS, to assess the likely effects of a development or activity on threatened species, populations or ecological communities, or their habitats. The relevant matters to be considered in determining a development application were listed in s 90. They included s 90(1)(b) "the impact of that development (whether or not the subject of an environmental impact statement) and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to mitigate that harm". It also included s 90(1)(c) "the effect of that development on the landscape or scenic quality of the locality" and s 90(1)(m) "whether adequate provision has been made for the landscaping of the land to which that development application relates and whether any trees or other vegetation on the land should be preserved". 99These generic heads of consideration embraced the impact of the development on the native flora and fauna, and their habitats, on the land. 100In 1991, the EF (IP) Act introduced for the first time in NSW requirements for an environmental assessment of development that was likely to have a significant effect on the environment of an endangered species. The EF (IP) Act amended s 90 of the EPA Act to add an additional head of consideration "(c2) whether there is likely to be a significant effect on the environment of endangered fauna". The addition of this head of consideration did not narrow the scope of the other heads of consideration, including s 90(1)(b). They continued to require consideration of all impacts of the development on the native flora and fauna, and their habitats, on the land. However, the added head of consideration required a particular focus of consideration, namely, whether the likely impacts of the development would include an effect on any endangered fauna that met the threshold of being a significant effect on the environment of the endangered fauna. 101To decide whether the effect on endangered fauna reached that threshold, the EF (IP) Act introduced s 4A. That new section provided: For the purpose of sections 77, 90 and 112, in deciding whether there is likely to be a significant effect on the environment of endangered fauna, the following factors must be taken into account ... . The section then listed seven factors (which were different to the seven factors that are now in s 5A of the current EPA Act). 102The three sections referred to in the chapeau of s 4A all contained the statutory formulation of whether there was likely to be a significant effect on the environment of endangered fauna. Section 77 (which was the predecessor to the current s 78A of the EPA Act) employed the statutory formulation to require a development application to be accompanied by the special form of environmental assessment of a fauna impact statement "where the application is in respect of development which is likely to significantly affect the environment of endangered fauna" (s 77(3)(d1)). Section 90 employed the statutory formulation to add a new head of consideration in s 90(1)(c2). Section 112 (which is still in the current EPA Act) employed the statutory formulation to require a determining authority not to carry out an activity or grant an approval in relation to an activity, "being an activity which is likely to significantly affect the environment of any endangered fauna," unless a fauna impact statement ('FIS') or an EIS which includes a FIS had been prepared (s 112(1B) and (1C) of the EPA Act). 103Section 4A, therefore, referred to these three sections because they employed the statutory formulation and to require the factors in s 4A to be taken into account in deciding whether the statutory formulation was satisfied for the different purposes of these sections. 104The EF (IP) Act was an interim statute. It was replaced in 1995 by the TSC Act. The TSC Act applied not only to endangered fauna (as had the EF (IP) Act) but also to endangered native flora, as well as to endangered populations of native flora and fauna and endangered ecological communities. However, the TSC Act continued key procedural concepts of the EF (IP) Act. In s 90 of the EPA Act, the head of consideration in (c2) that had been added by the EF (IP) Act was replaced with four heads of consideration, including the new statutory formulation of "whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats": (c2) the effect of that development on critical habitat, (c3) whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, (c4) any relevant recovery plan or threat abatement plan, (c5) the effect of that development on any other protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974. 105At this time, no change was made to the other heads of consideration in s 90. Hence, the other heads of consideration, including s 90(1)(b), continued to require consideration of the impacts of a development on the environment, including on the native flora and fauna, and their habitats, on the land. Their breadth of coverage was not reduced by the inclusion of the particular considerations of (c2) to (c5). 106The new statutory formulation was also added as a head of consideration to s 111 of the EPA Act. Section 112(1B)-(1D) were replaced by a new subsection (1B) that used the statutory formulation to decide whether a SIS, or EIS that includes a SIS, was required. 107The former s 77(3)(d1) was replaced with a new provision employing the new statutory formulation to decide whether a development application was required to be accompanied by a SIS. 108With these changes, the former s 4A was omitted and replaced by the new s 5A. Section 5A provided: For the purposes of this Act and, in particular, in the administration of s 77, 90 and 112, the following factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats ... . There were then listed eight factors (which were different to the seven factors listed in the current s 5A of the EPA Act). 109The three sections referred to in s 5A all employed the new statutory formulation. The factors in s 5A were required to be taken into account in deciding whether the statutory formulation was satisfied for the different purposes of these sections. 110The next relevant legislative change was in 1997 when the EPA Act was amended to, amongst other things, simplify the matters to be considered in determining a development application. The numerous and specific heads of consideration in s 90 were replaced with the fewer and general heads of consideration in s 79C. Section 79C(1)(b) was cast in terms sufficiently wide as to embrace not only the matters previously falling within the former s 90(1)(b), but also within many of the other heads of consideration in s 90(1) that had dealt with the effects of development on the environment, both the natural and the built, such as s 90(1)(c) (effect on landscape or scenic quality), (d) (social effect and economic effect), (e) (effect of the building in the locality) and (m) (effect on trees and vegetation), as well as the matters concerning threatened species, populations or ecological communities, or their habitats, and protected fauna and native plants, previously falling within the former s 90(1)(c2)-(c5). 111However, the new s 79C(1)(b) did not directly include an express requirement that the consent authority consider whether, if the development was likely to have an effect on threatened species, populations or ecological communities, or their habitats, that effect was likely to be significant. The first s 90(1)(c2) had directly required consideration of the then statutory formulation for endangered fauna and the subsequent s 90(1)(c3) had directly required consideration of the next statutory formulation for threatened species, populations or ecological communities, or their habitats. But s 79C(1) omitted such a direct requirement to consider the statutory formulation. Instead, the requirement to consider the statutory formulation was imposed indirectly - by the requirement to determine the development application that must include information on whether the development was likely to significantly affect threatened species, populations or ecological communities, or their habitats, and be accompanied by a SIS if the development was likely to significantly affect threatened species, populations or ecological communities, or their habitats. 112Although the requirement to decide whether the statutory formulation was satisfied was changed from being direct (under s 90) to indirect (under s 79C), the consent authority, in determining the development application, would still need to address the statutory formulation in considering the information contained in and the documents accompanying the development application. Hence, there still was utility in including reference to s 79C, instead of s 90, in the chapeau of s 5A(1). 113The substitution of the reference to s 79C instead of s 90 in the chapeau of s 5A(1) could not, and did not, have the effect of narrowing the ambit of s 79C(1)(b). If the legislature had intended to narrow the ambit of s 79C(1)(b), by including reference to s 79C in s 5A, it would have done so expressly by changing the clear and general words of s 79C(1)(b) to specifically exclude consideration of an effect on threatened species, populations or ecological communities, or their habitats, that was not likely to be a significant effect. The mere inclusion of the reference to s 79C in s 5A is not sufficient to achieve such an exclusion. 114For these reasons, ground 1 should be rejected. An effect on threatened species, populations or ecological communities, or their habitats, that is not likely to be a significant effect, is not an irrelevant matter for evaluation under s 79C(1). 115Ground 2 is also incorrect. Section 5A only applies and only provides assistance in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, for the various purposes of the EPA Act, such as whether a SIS is needed, a matter needs to be considered, or whether consultation or concurrence is required. Section 5A does not apply and does not provide assistance in deciding whether there is any effect on threatened species, populations or ecological communities, or their habitats, or in evaluating the effect of a development on threatened species, populations or ecological communities, or their habitats, other than to decide whether the effect is a significant effect for these purposes of the Act. 116Ground 3 fails with the rejection of the other two grounds. In circumstances where it had been held that the appellants' development would not be likely to have a significant effect on the threatened species of the Eastern Pygmy Possum or its habitat, s 5A did not apply to the evaluation of the effects of the development on the Eastern Pygmy Possum or its habitat. There was no need for evidence assessing the effect on the Eastern Pygmy Possum or its habitat to be provided in accordance with the requirements of s 5A.

Consideration of concurrence 117The appellants' argument, in grounds 4 and 5, that the Court, in determining the appeal pursuant to s 97 of the EPA Act, was required to take into consideration and give effect to what the appellants said was the concurrence of DECCW, is erroneous. It is based on a misunderstanding of the status of the written notice in which the Director-General stated that concurrence could be assumed. 118The need for concurrence of the Director-General arises from s 79B(3) of the EPA Act. That provides that development consent cannot be granted for development that either is on land that is, or is part of, critical habitat, or is likely to significantly affect a threatened species, population or ecological community, or its habitat, without the concurrence of the Director-General. In terms, the prohibition on the grant of development consent only applies, and the precondition to obtain the concurrence of the Director-General need only be satisfied, where the development has either of these consequences. If the development will not have either of these consequences, there is no necessity for the consent authority to obtain, and the Director-General has no power under s 79B(3) to grant, concurrence before the consent authority can grant development consent. 119If the concurrence of the Director-General to the grant of development consent is needed, it can be granted in two ways: by an actual grant of concurrence or by assuming the grant of concurrence. Concurrence is actually granted when the Director-General grants concurrence under s 79B(3) to the consent authority granting development consent to a particular development application to carry out development that will have either of the consequences in s 79B(3)(a) or (b). Concurrence is assumed to have been granted under s 79B(3) when the Director-General, by written notice given to the consent authority, informs the consent authority that concurrence may be assumed, subject to such qualifications or conditions as are specified in the notice (cl 64(1)(a) of the EPA Regulations). A consent granted by a consent authority that has assumed concurrence in accordance with a notice given by the Director-General is as valid and effective as if concurrence had been given by the Director-General: cl 64(2) of the EPA Regulations. 120Concurrence can only be granted in either way, however, if the development will have one or other of the consequences in s 79B(3)(a) or (b). If the development will not have either of these consequences, the Director-General cannot grant concurrence, or inform the consent authority that concurrence can be assumed, to the grant of development consent by the consent authority. 121In this case, the appellants' development was not on land that was, or was part of, critical habitat and the Court below had earlier held that the development was not likely to significantly affect any threatened species, population or ecological community, or its habitat. Hence, the prohibition in s 79B(3) on granting consent without the concurrence of the Director-General did not apply. The Director-General had no power under s 79B(3) to grant concurrence, or to inform the consent authority that concurrence could be assumed, to the grant of development consent to the development application for the development that would not have either of these consequences. 122The result was that there was no concurrence of the Director-General, actual or assumed, which the consent authority could consider or give effect to. The appellants' argument, in grounds 4 and 5, therefore fails on this factual threshold. The Commissioners, exercising the functions of the consent authority, could not consider or give effect to a concurrence, actual or assumed, that did not exist. 123The appellants argued, however, that there was nonetheless the written notice given by the Director-General to the Council, as consent authority, informing the Council that concurrence may be assumed in certain circumstances. The appellant argued that the Commissioners were bound to consider this written notice. They relied on the decision in Michel Projects Pty Ltd v Randwick Municipal Council as providing support for the need for the Court, in hearing and disposing of the appeal under s 97 of the EPA Act, to consider the views of a concurrence authority expressed in the written notice. 124The appellants' argument should be rejected. The written notice of the Director-General was not itself a grant of concurrence under s 79B(3). It simply informed the consent authority of the circumstances in which concurrence may be assumed but concurrence could not be assumed to have been granted unless and until the preconditions in s 79B(3) for the grant of concurrence were satisfied, namely, that the consent authority proposed to grant consent to a development application for development that was on land that was, or was part of, critical habitat, or that was likely to significantly affect a threatened species, population or ecological community, or its habitat. 125There is no statutory obligation for the consent authority to consider, or to give effect to, a written notice of the Director-General under cl 64(1) of the EPA Regulation informing the consent authority that concurrence may be assumed, if the preconditions in s 79B(3) for the grant of concurrence are not satisfied. It is not the written notice itself that the consent authority must consider and give effect to, but rather the concurrence once it is assumed to have been granted. Michel Projects is not authority to the contrary. 126In that case, the applicant made a development application to erect a residential flat building on an allotment of land having an area less than the minimum area prescribed by a development standard in the local environmental plan. The applicant made a written objection under State Environmental Planning Policy 1 - Development Standards ('SEPP 1') that compliance with that development standard was unreasonable or unnecessary in the circumstances of the case. Under cl 7 of SEPP 1, if the consent authority was satisfied that the objection was well founded and that granting of consent was consistent with the aims of the Policy, it may, with the concurrence of the Director of the Department of Planning, have granted consent to the development application notwithstanding the development standard the subject of the objection. The Council in that case, however, determined to reject the development application and therefore did not seek the concurrence of the Director. 127The Court on the appeal raised the concern that the Council had not notified the Minister of the appeal to afford him the opportunity to be heard at the hearing. The Court referred to the then s 97(3) of the EPA Act which provided that where an appeal has been made relating to a development application and the concurrence of the Minister or public authority was required, as referred to in s 78, in relation to the application, the Minister or public authority was to be given notice by the consent authority of the appeal and was entitled to be heard at the hearing of the appeal as if a party to the appeal. The then s 78 of the EPA Act provided that where an environmental planning instrument provided that a development application was not to be determined by the granting of consent under the Act without the concurrence of a Minister or public authority to development specified in the instrument, the consent authority had to forward a copy of the application to the Minister or public authority. 128The Court held that there was an obligation on the Council to notify the Minister or the Director (being the relevant public authority) where an appeal against the actual or deemed refusal of the Council had been lodged, where consent, if it had been given by the Council, would have required concurrence of the Minister or public authority to be effected. The Court held that the obligation imposed by s 97(3) was not confined to those appeals pursuant to s 97 where the Minister or public authority had concurred. The Court therefore directed that the Minister be joined and he was given the opportunity to be heard on the entitlement of the Director to be notified as well as on the merits of the development application, including whether the Director would have concurred in the granting of consent to the development application notwithstanding non-compliance with the development standard (at 414-415). 129The Court considered that its construction of s 97(3) was consistent with the general purpose of the legislation and produced a common sense result. It was in this context that the Court made its comments concerning the desirability of the Court considering the views of the Minister or public authority. The Court said: Section 39 of the Land and Environment Court Act provides that if an appeal relates to an application made to a consent authority which could not have approved it except with the concurrence of another, the court may determine the appeal whether or not the concurrence has been granted. The fact that the court is empowered to determine the matter notwithstanding the views of the concurring body should not be taken to mean that the concurring authority's views should not be taken into account by the court. The court, when hearing an appeal, has all the 'functions and discretions' of the council (see s 39 of the Court Act). The council is required to consider the views of the Minister or public authority and, in my opinion, so ought the court. (at 414). 130The situation that was considered in Michel Projects was completely different to the situation encountered in the present case. There was no question in the present case concerning whether the Director-General of DECCW should have been, but had not been, notified of the appeal and given an opportunity to be heard at the hearing of the appeal. There was no question concerning whether, had the Director-General been notified and been heard at the hearing of the appeal, the Director-General's views expressed at the hearing should have been taken into account. 131Further, the Court's statement in Michel Projects that, notwithstanding that under s 39 of the Court Act the Court can determine an appeal whether or not concurrence has been granted by the concurrence authority, the Court should take into account any views expressed by the concurrence authority, does not assist. The Court's statement presupposed that the concurrence authority had expressed a view on whether or not concurrence should be granted. The problem in Michel Projects was that the concurrence authority had never been notified and had not been given the opportunity to express a view one way or another as to whether concurrence should be granted to the grant of development consent to the particular application notwithstanding the development standard. 132In this case, however, the Director-General had not granted, and had no power under s 79B(3) of the EPA Act to grant, concurrence to the grant of development consent to the appellants' development application for a development that was neither on land that was, or was part of, critical habitat nor likely to significantly affect a threatened species, population or ecological community, or its habitat. Hence, the Director-General, as the concurrence authority, did not and could not express a view concerning the grant of or refusal to grant concurrence under s 79B(3), which view should have been taken into account by the Court. 133There is another reason why there was no concurrence of the Director-General to be considered. The prohibition in s 79B(3) is on the grant of development consent without the concurrence of the Director-General. The Director-General grants concurrence to the consent authority granting consent to a development application for development that has either of the consequences in s 79B(3)(a) or (b). The Director-General has no power under s 79B(3) to grant concurrence to the consent authority refusing consent to a development application for development that has either of the consequences in s 79B(3)(a) or (b). 134In this case, the Council as the consent authority had rejected the appellants' development application and was deemed to have refused consent to the application. The Commissioners, exercising the functions of the consent authority on the appeal, also determined to refuse consent to the appellants' development application. Hence, there was no grant of consent to the appellants' development application in respect of which the Director-General could be assumed to have granted concurrence. For this reason also, there was not an assumed concurrence of the Director-General under s 79B(3) that could be considered, or given effect to, by the Commissioners. 135For these reasons, the Commissioners and the Court below did not err by not considering or giving effect to any concurrence of the Director-General under s 79B(3), as there was none.

Conclusion and orders 136The appellants have failed to establish that the Commissioners and the Court below erred on the questions of law raised in grounds 1-5 of the appeal. The appeal should therefore be dismissed with costs. 137The orders I propose this Court should make are: (1)The appeal is dismissed. (2)The appellants are to pay the respondent's costs of the appeal to this Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2014