Drake-Brockman v Minister for Planning & Anor [2007] NSWLEC 490 | Case summary

Drake-Brockman v Minister for Planning & Anor [2007] NSWLEC 490 | Case summary | Zoe

[7]

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 ; Attorney-General (NSW); ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd (1977) 2 NSWLR 955 ; Attorney General v JN Perry Constructions Pty Ltd (1961) 6 LGRA 385 ; Australian Broadcasting Corporation v Redmore Pty Limited (1989) 166 CLR 454; Avon Downs Pty Ltd v The Federal Commissioner of Taxation (1949) 78 CLR 353 ; Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor [2007] NSWCA 171 ; Belongil Progress Association v Byron Shire Council (1999) 106 LGERA 202 ; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 ; Bruce v Cole (1998) 45 NSWLR 163 ; Cartier Holdings Pty Ltd v Newcastle City Council (2001) 115 LGERA 407; Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 ; Chisholm v Pittwater Council & Anor [2001] NSWCA 104 ; CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; Currey v Sutherland Shire Council (2003) 129 LGERA 223; Foster v Minister for Customs and Justice (2000) 200 CLR 442 ; Gray v The Minister for Planning & Ors (2006) 152 LGERA 258; Hill v Woollahra Municipal Council (2003) 127 LGERA 7; Hunter Resources Limited v Melville (1988) 164 CLR 234; CASES CITED: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 ; Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Minister for Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24 ; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 ; Murrumbidgee Ground Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 ; Newcastle City Council v GIO General Limited (1997) 191 CLR 85 ; Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 ; Prineas v Forestry Commission of NSW (1984) 49 LGRA 402; Prineas v Forestry Commission of NSW (1984) 53 LGRA 160 ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ; R v Young (1999) 46 NSWLR 681; Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 ; Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10; Terrace Towers Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 ; Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 ; Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396 ; Weal v Bathurst City Council (2000) 111 LGERA 181; Webster v McIntosh (1980) 32 ALR 603; Wills v Bowley [1983] 1 AC 57 ; Young v Parramatta City Council (2007) 152 LGERA 221; Zhang v Canterbury City Council (2001) 51 NSWLR 589

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12 A definition of "ecologically sustainable development" was inserted into the EPA Act on 1 August 2005. Under s 4(1) this term was defined to have the same meaning as in s 6(2) of the Protection of the Environment Administration Act 1991. Section 6(2) provides that: (2) For the purposes of subsection (1) (a), ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs: (a) the precautionary principle - namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options, (b) inter-generational equity - namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations, (c) conservation of biological diversity and ecological integrity - namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration, (d) improved valuation, pricing and incentive mechanisms - namely, that environmental factors should be included in the valuation of assets and services, such as: (i) polluter pays - that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement, (ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste, (iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

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(10) These breaches should lead to invalidity applying the principles discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]. Section 75X(4) did not protect the breaches from the consequence of invalidity ( Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396 at [179] - [184]). The statutory scheme was not distinguishable from that considered in Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306. See also Belongil Progress Association Inc v Byron Shire Council (1999) 106 LGERA 202 at [36]. 53 The respondents submitted the applicant's arguments on the first ground failed at every step. Nothing in the statutory scheme suggests that a request for authorisation to submit a concept plan could not itself be the concept plan. The letter of 5 July 2006 performed both functions. Div 3 of Pt 3A, as in force at the time, did not require the lodgement of an "application" for a concept plan. Hence, insofar as s 75F(2) refers to an application, it could not apply to concept plans under Div 3. The reference to "when an application is made" in s 75F(2) is best understood as identifying the circumstances when the Director-General is empowered to issue environmental assessment requirements. An "application" is not necessarily a formal document. Provided the process has been initiated and the Director-General has sufficient information to prepare the environmental assessment requirements there will be no breach, whether or not the submission on 5 July 2006 was a concept plan. No reasonable purpose is achieved by reading the provisions as manifesting some strict chronological order in which steps must be undertaken. Section 75F(2) indicates the need for some connection between the submission of the concept plan and the environmental assessment requirements. This is supported by cl 8C of the EPA Regulation, which requires the Director-General to notify the proponent of environmental assessment requirements 28 days after a request.

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63 Pt 3A of the EPA Act is to be construed consistent with principle. The statutory scheme must be considered in context. The context includes all of the provisions of the EPA Act, "the existing state of the law and the mischief…one may discern the statute was intended to remedy" (CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408). The primary object is to construe relevant provisions so that they are "consistent with the language and purpose of all the provisions of the statute" (Project Blue Sky at [69]). Statutory provisions are to be approached on the basis that they are "intended to give effect to harmonious goals" (Project Blue Sky at [70]). Where conflict appears, it is to be alleviated by "adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions" (Project Blue Sky at [70]). In so doing, meaning must be given to every word of the relevant provisions (Project Blue Sky at [71]). 64 Pt 3A may apply to kinds of projects warranting the description of major infrastructure or other development of significance (s 75B(2)). The Part applies only where the Minister has made decisions about a kind of development or a particular development (s 75B). Consistent with this scheme, a "proponent" is not a person who has made an application but a person proposing to carry out development comprising all or any part of the project (s 75A). A "project" is not a thing described in an application but any development declared under s 75B to be a project to which Pt 3A applies. In other words, the legislation provides that development is not a "project" unless the Minister so declares either through recommending a State environmental planning policy (made by the Governor) or by order in the gazette. The Minister thus controls access to Pt 3A. Once that fact is recognised, many of the apparent problems with the provisions of Pt 3A fall away.

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87 Section 6 of the report was headed assessment. It commenced with a table repeating the provisions of s 75I(2) as they applied before 12 January 2007 (that is, absent any reference to s 75I(2)(g) "a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project"). Against the text of s 75I(2)(f) ("any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate") the report stated in response "the environmental assessment of this application is this report in its entirety". Section 6.1 explained that the assessment had been prepared after reviewing many documents including the proponent's environmental assessment. Section 6.2 identified each relevant issue and who had raised it. The report then considered how the proponent sought to address the issue. The section concluded: Each subsection concludes with a statement on whether the issue is resolved or whether amendments are necessary by either modifying the Concept Plan or introducing new provisions in an environmental planning instrument. Unless noted to the contrary, the Department is satisfied the responses provided by the Proponent in their EA and the additional response to issues raised in submissions are reasonable. 88 Section 6.2 then dealt with issues under headings following the format identified in section 6.1 - namely, the issue, who raised it, a consideration of the issue and the Director-General's resolution of the issue. The resolutions varied depending on the issue. For example, the density and height issue ended with a resolution that they were "appropriate to the site". The urban design - building envelopes issue ended with a resolution that the concept plan be modified. The report dealt with each issue in this manner before the conclusion in section 7. 89 The report's conclusion contained the following observations: The Department has reviewed the environmental assessment and the preferred project report. It has duly considered advice from public authorities as well as issues raised in general submissions in accordance with Section 75l(2) of the Act. All the relevant environmental issues associated with the proposal have been assessed.

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(2) Whether the "assessment requirements under this Division with respect to the project" is construed to mean the Director-General's environmental assessment requirements or the process of environmental assessment under Div 2 (see the observations in Tugun Cobaki at [178]), there is no statement relating to compliance with those requirements in the Director-General's report. (3) Although the report recorded that the Director-General accepted the proponent's environmental assessment as adequately addressing the environmental assessment requirements under s 75H(2) and (3), this was immaterial. The question whether an assessment adequately addresses the requirements under s 75H(2) and (3) is different from the question whether the project complies with those requirements, being a matter "to which the Director-General is expressly required to turn his or her mind" by s 75I(2)(g). Unless the report contains this statement of opinion by the Director-General, the Minister cannot give approval to a concept plan. (4) The Director-General clearly did not form the required opinion. The table in section 6 of the report conspicuously omitted any reference to s 75I(2)(g), probably because the new subsection only came into force on 12 January 2007 and the report was completed in February 2007. The complete absence of the statement necessarily renders the Minister's approval and related decisions invalid. To allow these decisions to stand where neither the Minister nor the Director-General formed the required opinions about whether the project complied with the environmental assessment requirements would subvert the whole purpose of having such requirements. By s 75I(2)(g), Parliament required a "clear and express statement of opinion" about compliance with the environmental assessment requirements. However, in the Director-General's report it "is as if those requirements do not exist". (5) Contrary to the respondents' submissions, the entirety of the report cannot be the required statement because the report must "include" the statement. Section 75I(2)(g) serves no purpose if the entire report may be the statement. The meaning of "statement" is clear. From 12 January 2007 the Minister no longer has to consider whether there has been compliance with the environmental assessment requirements but has to consider the Director-General's opinion about such compliance. To do so, the statement of opinion must be clear on the face of the report in one location. Otherwise the Minister would have to read the report with a "fine tooth comb" to ascertain the Director-General's opinion. This is inconsistent with a statutory scheme intended to "cut red tape" (a reference to the second reading speech, Hansard, 27 May 2005, p 16322). The obligation in s 75I(2)(g) is substantive not formal, as the Director-General must first form the required opinion before the statement may be included. (6) If, contrary to these submissions, the entirety of the report can be the statement required by s 75I(2)(g) then the report did not deal with the vast majority of the environmental assessment requirements. A reference table the applicant prepared was said to demonstrate this fact.

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(4) All development: s All refrigerants and insulation should be specified to have an Ozone Depletion Potential (ODP) of zero. s Any external lighting should not be directed beyond the site boundary upwards. The Proponent includes a WSUD for the CUB Site that seeks to integrate the management of the three urban water streams of potable water, wastewater and stormwater. It is based on the following principles as outlines in the EA: … The Department has considered these points and notes that the Proponent has made commitments to ensuring that these targets and measures are implemented on the CUB Site. The Department also notes that the high modal split away from private vehicles will mean that the CUB Site will help assist in reducing greenhouse gas emissions and is a positive contribution. Consequently, the Department is satisfied that the proposal is consistent with ESD principles and WSUD objectives. Resolution The Department considers the concept plan has adequately addressed ecologically sustainable development principles. 117 The Minister's approval under s 75O(1) was limited to the matters specified in Sch 1 item A3 (in effect, layout, land uses, building envelopes, maximum floor space and related matters). Sch 1 item A4(2)(c) requires compliance with the revised statement of commitments (see s 75F(6) of the EPA Act). The revised statement of commitments included commitments relating to such matters as "environmentally sustainable development" (item 1) and "water sensitive urban design" (item 13). Sch 2 item A18 requires all future applications for development on the site to be in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The aims of that policy are to encourage sustainable residential development on a consistent basis throughout NSW. The Minister also decided that further environmental assessment was required for the project, under Pts 4 or 5 of the EPA Act (as applicable) or Pt 3A depending on the capital value of the part of the project involved.

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122 The third respondent adopted these submissions, but also submitted as a threshold issue that the Minister was not subject to any obligation to consider ecologically sustainable development when making decisions under Pt 3A. Gray was thus incorrect and should not be followed. Decision relating to third ground 123 The restrictions that apply to a court reviewing an administrative decision for alleged illegality are well known, but bear repetition. The court's role is to declare and enforce the law ( Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36). Merits review is not permitted. When alleging a failure to consider, an applicant must identify some matter expressly required to be considered or "otherwise necessarily implied from the scheme of the legislation" and demonstrate that this matter has not been taken into account ( Kindimindi at [79] - [80]. See also Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 at [211]). The weight to be given to relevant considerations is generally a matter for the decision maker alone ( Peko-Wallsend at 41). For this reason, "epithets such as 'proper, genuine and realistic' consideration … risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review" ( Kindimindi at [79] referring to Bruce v Cole (1998) 45 NSWLR 163 at 186E. See also Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor [2007] NSWCA 171 at [76]). 124 The Land and Environment Court has separate merits and judicial review functions (Pt 3 of the Land and Environment Court Act 1979). In its merits review function the Court makes the decision it finds correct or preferable on the evidence, weighing up for itself the competing considerations. In its judicial review function, the Court may not trespass on the merits or impugn a decision made within the necessary legal boundaries. This distinction and consequential limitation in judicial review proceedings is to be "constantly borne in mind" ( Peko-Wallsend at 40-41). It follows that care must be taken in applying observations about the level or extent of assessment of issues found to be appropriate in merits appeals to other contexts. Specifically, observations made by the Court in it merits jurisdiction cannot be understood as mandating a particular outcome in judicial review proceedings. This is evident from the emphasis on the particular factual context in the outcomes apparent from those decisions. 125 For example, in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 (an appeal in the Court's merits review jurisdiction), the Court emphasised that consent authorities under Pt 4 of the EPA Act are to consider the principles of ecologically sustainable development "in cases where issues relevant to those principles arise" (at [113]). See also Telstra v Hornsby at [124]). Telstra v Hornsby (another appeal in the Court's merits review jurisdiction) was an example of development where the Court found on the facts that the precautionary principle had no role to play (at [184]).

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128 In Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [23] Gleeson CJ and McHugh J referred to Brennan J's statement of principle in Peko-Wallsend at 55: The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power, Gleeson CJ and McHugh J then observed that: The level of particularity with which a matter is identified for the purpose of applying this principle may be significant. A related question arises where the failure complained of is not a complete failure to address a certain subject, but a failure to make some inquiry about facts said to be relevant to that subject. Gaudron and Hayne JJ agreed with this observation and also noted in Foster at [34]: The relevant state of satisfaction is of matters described in qualitative terms which call for the making of value judgments about which reasonable minds may differ. 129 Those observations are apt in the present context. There is no factual basis for suggesting that the Minister failed to give any consideration to ecologically sustainable development when approving the project. The Minister clearly did consider that matter. Nor can it be suggested that the Minister failed to give any consideration to greenhouse gas emissions. The references in the Director-General's report, the proponent's statement of commitments and items set out in the Schedules to the approval to BASIX, NatHERS, ABGR energy performance, Green Star Rating, the Australian Building Greenhouse Rating Scheme and the high modal split away from private vehicles acting to assist in reducing greenhouse gas emissions, belie any such suggestion. It is true that the Minister did not have before him information as contained in Mr Lee's report specifying the total embodied energy involved in the production and construction of the development, the total annual operational emissions or the relative significance of those emissions in the context of the City of Sydney local government area or more generally. As noted, the relevant question for the Court is not whether it would have been desirable for the Minister to have this information but whether the EPA Act, by necessary implication, required the Minister to have information to this effect, failing which the Minister could not consider ecologically sustainable development? The applicant submitted it did, relying on the decision in Gray at [126] and [133] - [135].

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130 In Gray the Director-General had required as part of the proponent's environmental assessment under s 75F(2) a "detailed greenhouse gas assessment" (at [16]). The proponent had included in its environmental assessment a study of greenhouse gases including "scope 1" (direct) and "scope 2" (electricity indirect) greenhouse gas emissions, but not "scope 3" (other indirect) emissions. As the Director-General had required the proponent's environmental assessment to include a "detailed greenhouse gas assessment", the Court held that the Director-General's decision under s 75H(3) to accept the assessment as adequately addressing the environmental assessment requirements (despite the absence of any information about "scope 3" emissions) involved a failure to consider the precautionary principle and inter-generational equity components of ecologically sustainable development. Gray thus turned on the terms of the Director-General's requirements under s 75F(2) in the particular case. In so observing I should not be understood as accepting that the Director-General's requirements are irrevocable (see, by analogy, Prineas (1984) 53 LGRA 160 at 167) or that the Director-General's view that the requirements have been adequately addressed is liable to be declared invalid absent some material legal error of the kind identified by Dixon J in Avon Downs Pty Ltd v The Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (and putting to one side, for this purpose, the effect of the privative provisions in ss 75T, 75X(4) and 75X(5) of the EPA Act). 131 It follows that the decision in Gray is distinguishable from the present case. The applicant's grounds of challenge in this matter do not include any complaint about the Director-General's acceptance of the proponent's environmental assessment under s 75H(3). They do not include, as appeared to have been critical in Gray , any alleged disjunction between what the Director-General required under s 75F(2) and what the Director-General accepted as adequate under s 75H(3). Gray does not stand for a general proposition that Pt 3A of the EPA Act requires any particular form of assessment of greenhouse gas emissions for each and every project to which that Part applies. Any such understanding would be inconsistent with the statutory provisions and established principles of judicial review to which I have referred above. The decision in Gray , therefore, does not assist the applicant. The applicant must establish its propositions other than by reference to Gray .

Drake-Brockman v Minister for Planning & Anor

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