Dean v Minister for Planning and Andros Australia Pty Limited [2007] NSWLEC 779 | Case summary

1 HIS HONOUR: On 7 June 2007, the Minister for Planning granted conditional development consent to the Anvil Hill Coal Project in Wybong, near Muswellbrook, in the upper Hunter Valley of New South Wales. 2 The Minister did so pursuant to the power in s 75J(1) of the Environmental Planning and Assessment Act 1979 (NSW). It is common ground between the parties that the Anvil Hill Coal Project is a project to which Part 3A of the Act applies (under s 75B). 3 The applicant contends that, by reason of the then applicable s 75J(3) of the Act, the Minister did not have power under s 75J(1) to approve the Project because the carrying out of the Project was "wholly prohibited" under the applicable Muswellbrook Local Environmental Plan 1985 by the operation of s 76B of the Act. 4 The Project is a large project, involving different types of development within the definition of "development" in s 4(1) of the Act and various parts spread over different parcels of land. The Project involves the development, operation and rehabilitation of an open cut coal mine, the construction and operation of associated infrastructure (including access roads, power transmission lines and railways) and various ancillary activities. 5 It is common ground between the parties that parts of the Project are located on land on which development for the purposes of the Project may be carried out with development consent under the applicable Muswellbrook LEP but other parts of the Project are located on land on which the development for the purposes of the Project would be prohibited. 6 In particular, most of the Project fell within an area zoned 1(a) (Rural "A" Zone) under Muswellbrook LEP. According to the table in clause 8, in Zone 1(a) (Rural "A" Zone) development for the purpose of mining may be carried out, but only with development consent. 7 Part of the Project where open cut mining was proposed to occur, fell within an area zoned 7(d) (Environment Protection (Scenic) Zone). According to the table in clause 8, "mining" is not recognised as a purpose for which development may be carried out, either with or without consent, in zone 7(d) (Environment Protection (Scenic) Zone). Development for the purpose of "mining" is therefore prohibited in zone 7(d) (see item 5 in the table under the heading for zone 7(d)). 8 Another part of the Project, where a proposed rail loop was to be constructed, fell within an area zoned 7(L1) (Environment Protection General (L1) (Alluvial Areas Zone)). According to the table in clause 8, "railway purposes" is not recognised as a purpose for which development may be carried out, either with or without consent, in zone 7(L1). Development for "railway purposes" is therefore prohibited within zone 7(L1) (see item 5 in the table under the heading for zone 7(L1)). However, clause 8 applies "except as otherwise provided by this plan". Clause 6(1) of the plan adopts the Environmental Planning and Assessment Model Provisions 1980. Clause 35 of the Model Provisions provides, so far as is relevant, "nothing in the local environmental plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit - (a) the carrying out of development of any description specified in Schedule 1". Schedule 1 specifies the carrying out by persons carrying on railway undertakings of development required in connection with the movement of traffic by rail, including the construction, reconstruction, alteration, maintenance and repair of ways, works and plant, amongst other developments. There are, however, some exclusions, including the construction of new railways, which could be relevant. Hence, the development, or at least part of the development, for railway purposes on the land within zone 7(L1) may still be prohibited. The Minister was advised that railway works were prohibited in zone 7(L1) and proceeded on that basis. 9 The consequence is that, although parts of the Project would be permissible with consent under Muswellbrook LEP, other parts would be prohibited. 10 The applicant submits that the limitation imposed by s 75J(3) on the power in s 75J(1) to approve a project operates to preclude the Minister approving a project that is not a critical infrastructure project if any part or the whole of the Project is prohibited under an environmental planning instrument by operation of s 76B of the Act. In this case, because parts of the Project are on land within zones 7(d) and 7(L1) where development for the purposes of mining and/or railway purposes are prohibited under Muswellbrook LEP, the applicant submits that s 75J(3) operates to preclude the Minister from approving the carrying out of the Project which includes those parts. The applicant submits that the word "wholly" in s 75J(3) means "absolutely" or "unconditionally" and is intended to distinguish the type of prohibition to which s 75J(3) applies from conditional prohibitions or development standards (at least those drafted in form as a prohibition). Alternatively, "wholly" is designed to emphasise that the development prohibited by s 75J(3) is development that cannot be carried out on the land under s 76B. 11 The Minister and the second respondent, Andros Australia Pty Limited, submit that the carrying out of a project is only "wholly" prohibited if each and every part of the project is prohibited on land on which each part of the project is to be carried out under the applicable environmental planning instrument. In this case, since parts of the Project are permissible with consent under Muswellbrook LEP on land within zone 1(a) on which those parts are to be carried out, the Project is not wholly prohibited under Muswellbrook LEP by the operation of s 76B of the Act and hence the limitation in s 75J(3) does not apply. 12 The resolution of this case turns on the proper construction of s 75J(3) of the Act. Section 75J(3) has been amended subsequent to the Minister's decision. At the time of the Minister's decision, however, s 75J(3) provided: "The Minister cannot approve of the carrying out of a project: (a) that is not a critical infrastructure project, and (b) that would (but for this Part) be wholly prohibited under an environmental planning instrument by the operation of section 76B." 13 It is common ground that the Project is not a critical infrastructure project and hence paragraph (a) of s 75J(3) is not applicable. Paragraph (b) is the relevant provision. 14 At least four points should be noted about s 75J(3)(b). First, the object of the prohibition in paragraph (b) of s 75J(3) is "the carrying out of a project"; it is the carrying out of the project that must be "wholly prohibited". 15 Secondly, the ultimate source of the prohibition on the carrying out of the project is s 76B of the Act; it is the carrying out of the project that would be wholly prohibited under an environmental planning instrument "by the operation of s 76B". Section 76B of the Act provides: "If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land". 16 The type of prohibition to which s 76B refers is a prohibition on carrying out, of development in terms of the threefold classification established by Division 1 of Part 4 of the Act. This threefold classification divides development into development that may be carried out without the need for development consent, development that may not be carried out except with development consent and development that is prohibited. Environmental planning instruments identify particular forms of development according to this threefold classification. 17 Section 76B operates so as to proscribe a person carrying out, not only development that is prohibited under an environmental planning instrument on land (s 76B(a)), being the third category of the threefold classification, but also development that the environmental planning instrument provides cannot be carried out on land with or without development consent (s 76B(b)), being the first and second categories of the threefold classification. Although the latter situation is not common, it could occur where the applicable development control table for a zone in an environmental planning instrument nominates the purposes of development for each of the categories of the threefold classification with no innominate purposes created by cross-reference between the categories. 18 Section 76B does not apply to any form of control of development having the effect of a prohibition but which is not covered by the threefold classification of development. The applicant referred to provisions of an environmental planning instrument, which might be characterised as conditional prohibitions or development standards. By conditional prohibition, the applicant meant a provision of an environmental planning instrument which made development prohibited, or not able to be consented to, if a certain state of affairs existed. By development standard, the applicant meant provisions of an environmental planning instrument satisfying the definition of "development standard" in s 4(1) and judicial exegesis such as in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 and Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130. Although these types of provisions can have the effect of prohibiting development in certain circumstances, they are not absolute prohibitions that apply in all circumstances. They are not the type of prohibition to which s 76B applies. 19 Thirdly, s76B necessitates an inquiry into how the applicable environmental planning instrument controls development, in the sense of the three-fold classification of development, on each parcel of land on which development is proposed to be carried out. The inquiry focuses "on the land" on which the proposed development is to be carried out. Section 76B prohibits development "on land" in respect of which the relevant environmental planning instrument provides that such development either is prohibited or cannot be carried out with or without development consent. If development is on land in respect of which the relevant environmental planning instrument neither provides that such development is prohibited nor provides that such development cannot be carried out with or without development consent, then that development is not prohibited by s 76B. 20 The fact that other development (which might be part of a larger project) is on land in respect of which the relevant environmental planning instrument provides that such development is prohibited or cannot be carried out with or without development consent, does not have the consequence of making development that is not otherwise prohibited by the operation of s 76B, prohibited. The cases concerned with categorisation of the purpose of development to which the applicant referred, such as Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 160-161, are inapplicable. 21 Fourthly, recognition needs to be given to the words in parentheses "but for this Part" in paragraph (b). These words (together with the conditional tense employed in the words "would…be") refer to the operation and effect of s 75R of the Act (in Part 3A) which makes non applicable Part 4 of the Act (in which s 76B occurs) and environmental planning instruments (other than State environmental planning policies), to approved projects: see s 75R(1) and (3). Subsection 75J(3) operates to limit the Minister's power to approve a project under Part 3A that is not a critical infrastructure project, if the specified state of affairs (namely, the carrying out of the project would be wholly prohibited under an environmental planning instrument by the operation of s 76B) would have existed but for the operation of s 75R which made that state of affairs (s 76B and the environmental planning instrument) non applicable. Only in this indirect sense, and only to this extent, is s 76B and any prohibition under an environmental planning instrument made applicable to a project under Part 3A that is not a critical infrastructure project. 22 It is in this context that the word "wholly" and the phrase "wholly prohibited under an environmental planning instrument by the operation of s 76B" need to be considered. 23 If s 76B only operates to prohibit the carrying out of development that an environmental planning instrument, by reference to the threefold classification of development, provides is prohibited development or cannot be carried out either with or without consent, and not the carrying out of development that an environmental planning instrument controls by way of development standards or conditional prohibitions that apply in particular circumstances, then logically the word "wholly" in s 75J(3)(b) cannot be interpreted as having the operation or effect of selecting from a generic set of different types of prohibitions, only the specific type of prohibition deriving from the threefold classification of development and excluding other types of provisions such as development standards and conditional prohibitions. This is the answer to the first way in which the applicant submitted the word "wholly" should be interpreted. 24 If the operation of s 76B is to prohibit the carrying out of development on land if an environmental planning instrument provides that such development on the land is prohibited or cannot be carried out with or without consent, then the word "wholly" must be interpreted in the context of the land on which the development is to be carried out. The carrying out of a project would be "wholly prohibited under an environmental planning instrument by the operation of section 76B" if the environmental planning instrument provides that the carrying out of all of the development constituting the project on all of the land on which it is to be carried out either is prohibited or cannot be carried out with or without development consent. If, however, the environmental planning instrument provides that the development constituting the project can be carried out with or without consent on some of the land, then notwithstanding that that instrument might also provide that the development is prohibited or cannot be carried out with or without consent on other land, the carrying out of the development would not be "wholly prohibited" under that environmental planning instrument by operation of s 76B; it would only be partly prohibited. 25 This is a further answer to the first way in which the applicant submitted the word "wholly" should be interpreted. It accords with the respondents' submissions. It means that the Minister can approve the carrying out of a project that is not a critical infrastructure project that would (but for Part 3A) be prohibited on part of the land on which the project is to be carried out if the Project would be permissible with or without development consent on other parts of the land on which the project is to be carried out. 26 The applicant's alternative submission is that the word "wholly" is intended simply to emphasise that the prohibition to which s 75J(3) refers is a prohibition under s 76B. However, such a submission gives the word "wholly" no work to do. The source of the prohibition is already expressly stated to be "the operation of section 75B". Adding the word "wholly" would not add anything; it would make the word superfluous. This offends the principle of statutory interpretation that "a court construing a statutory provision must strive to give meaning to every word of the provision": Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71]. In contrast, the construction of s 75J(3)(b) that I have explained above does give meaning to the word "wholly". 27 The consequence for this case of the proper construction of s 75J(3)(b), is that, because the carrying out of the Anvil Hill Coal Project would be permissible with development consent on part of the land under Muswellbrook LEP (the land in zone 1(a) on which the Project is to be carried out), it would not be wholly prohibited under Muswellbrook LEP by operation of s 76B. Accordingly, s 75J(3) did not preclude the Minister approving the carrying out of the Project. 28 The applicant's challenge to the validity of the development consent for the project therefore fails. The application should be dismissed. 29 The parties have not addressed as to costs in the event the application were to be dismissed. I note that the proper interpretation of s 75J(3) of the Act had not previously been the subject of judicial attention. There was public benefit, including for the Minister, in the section being considered by the Court. This suggests that the proper order might be that there be no order as to costs: see Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 at 621-622. However, if the respondents wish to apply for a costs order, they should do so within 7 days of this judgment and the matter can be argued. Otherwise, subject to the specific order discussed below, the Court will make no order as to costs of the proceedings after the 7 day period has expired. 30 I note that, apart from costs related to the outcome of the application, the Minister sought in the written submissions a specific order for costs thrown away as a result of leave being given to the applicant on 13 November 2007 to amend the points of claim. The applicant has not addressed on this specific application for costs. Prima facie, this is a usual term of leave to amend. If the applicant wishes to contest that such a specific order for costs should be made, the applicant should apply within 7 days of the judgment to re-list the matter for argument. Otherwise, the Court will make such a specific order after the 7 day period has expired. **********

Dean v Minister for Planning and Andros Australia Pty Limited

At a glance

Court

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Before

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Judgment (13 paragraphs)

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Legislation Cited (1)

Cases Cited (4)

Cited By (2)