Section 112(1) of the EPAA Gives Rise to a Jurisdictional Fact
230As a threshold issue, Fullerton submitted that whether or not the impugned drilling activity is likely to significantly affect the environment pursuant to s 112(1) of the EPAA was a jurisdictional fact that the Court must determine for itself on the basis of all available admissible evidence, including extraneous expert evidence. In support, Fullerton relied on authorities such as Timbarra; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 and Oshlack. Recently in Parks and Playgrounds Biscoe J assumed, without discussion, that s 112 involved the determination of a jurisdictional fact.
231If s 112 of the EPAA does give rise to a jurisdictional fact as Fullerton contends, then expert evidence, namely, the reports of Dr Mudd and Mr Paull, may be admissible to assist the Court in determining for itself the existence or non-existence of that fact (R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors & Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54 at 91-92; R v Ludeke; Ex parte Queensland Electricity Commission [1985] HCA 55; (1985) 159 CLR 178 at 183-184; DMW v CGW [1982] HCA 73; (1982) 151 CLR 491 at 510; Timbarra at [36] and Pallas Newco at [105] and [188]). This is because, as Professor Aronson has observed, jurisdictional fact review is more than something approaching merits review, "it is merits review" (M Aronson, B Dyer, M Groves, Judicial Review of Administrative Action, 4th ed (2009) Law Book Co at 257 cited in M Leeming, Authority to Decide - The Law of Jurisdiction in Australia, (2012) The Federation Press at 62).
232Of course, as the survey of the authorities below demonstrates, had Fullerton pleaded that the decision to approve the pilot program was manifestly unreasonable, then the expert evidence may have (subject to other objections) been admissible in any event. But, as stated above, Fullerton expressly eschewed this ground of review.
233Dart and the Department vigorously contested Fullerton's position relying primarily on obiter dictum of Spigelman CJ in Timbarra. This dictum, they claimed, strongly suggested that s 112 is not to be construed as a jurisdictional fact (at [84]). Accordingly, the determination of whether an activity is likely to significantly affect the environment so as to require an EIS is a matter for the determining authority, and not the Court, based exclusively on the material before it.
234Curiously, with the exception of a pronouncement made by Biscoe J in Oshlack and Parks and Playgrounds (at [132]), the question has not been authoritatively decided. It therefore falls to this Court to engage in this task. In doing so, it will be necessary to review the earlier jurisprudence concerning s 112 of the EPAA.
235Before examining the relevant case law, it is both useful and convenient to set out some of the now established principles governing the existence of jurisdictional facts.
236Parliament may make the objective existence of a particular fact a precondition of the exercise of a particular power and thus a jurisdictional fact. The term 'jurisdictional fact' is an expression that, as was noted in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 (at [43] and see a similar description in City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [28]):
43. ... is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
237In Plaintiff M70/2011 French CJ described the term as follows (at [57]) (footnotes omitted):
57. The term "jurisdictional fact" applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be "a complex of elements"[64]. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court[65]. The decision-maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact[66]. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact. ...
238Determining whether a statutory provision gives rise to a jurisdictional fact turns on the terms of the legislation conferring the power. That is to say, it is a matter of statutory construction (Timbarra at [39]; Pallas Newco at [6]; Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 at [115] and Plaintiff M70/2011 at [58]).
239Generally the question to be asked is whether something is a condition precedent to the exercise of power and, if so, whether the precondition "is "the existence of a fact in the real world" or "merely a state of mind" (Leeming, at 64). The absence of the jurisdictional fact will invalidate the purported exercise of power (Huntlee at [114] and Plaintiff M70/2011 at [59]-[60]).
240There is no doubt that early decisions in this Court (many of which the Court was taken to by the parties) had recourse to expert evidence for the purpose of determining if s 112 of the EPAA had been breached. These decisions were not, however, explicitly concerned with the concept of jurisdictional fact. Rather, the majority of these cases dealt with s 112(1) in terms of whether the determining authority's decision was reasonably open to it, and more often than not, expert evidence was admitted on the basis of an alleged breach of both ss 111 and 112 of the EPAA and not merely s 112. Their usefulness and application to the present task is accordingly circumscribed.
241In Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38, the applicant sought orders restraining the respondent from carrying out logging activities in a State forest and declarations that the proposed logging was an activity to which s 112(1) of the EPA Act applied because it was likely to significantly affect the environment. The respondent submitted that because the activity in this case was logging only in certain compartments of the State forest, it was not. Cripps J held that the proposed activity was likely to significantly affect the environment so as to necessitate the preparation of an EIS. In reaching that conclusion, his Honour was of the opinion that (at 48):
I am entitled to take into account...the ecological and environmental matters referred to by Mr Hitchcock and Dr Recher. In particular, I have paid attention to Dr Recher's evidence concerning the scientific value of this locality.
242Prineas was a case concerned with the proposed logging of a rainforest. The applicant commenced proceedings seeking declarations that the proposed logging was an activity likely to significantly affect the environment and that the EIS which had been prepared by the Forestry Commission was inadequate. He sought an order that the Commission be restrained from constructing a road that was preparatory and necessarily incidental to the logging. At first instance, the respondents initially denied the applicant's allegations. However, after the applicant had called expert evidence on the issue of the effect of logging within the rainforest, the respondents conceded that the logging was an activity likely to significantly affect the environment within the meaning of s 112(1) of the EPAA (at 405). Principally, the judgment in Prineas was concerned with the adequacy of the EIS. Although accepting the criticisms of the expert witnesses as to the matters omitted from the EIS, Cripps J concluded that the EIS substantially complied with the legislative requirements and dismissed the application. The judgment was upheld on appeal (Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160).
243In Leichhardt Municipal Council v Maritime Services Board of New South Wales (1985) 57 LGRA 169, the Maritime Services Board granted approval for the second respondent to temporarily relocate a heliport to a pier at Pyrmont. No EIS was obtained before approving the relocation. The Board had concluded that because the relocation was temporary it would not be likely to significantly affect the environment. Extraneous evidence, both lay and expert, was called by both sides and admitted in relation to the impact of the noise of the development on the amenity of the people living nearby (at 175). Cripps J examined expert acoustic evidence and concluded that the temporary relocation of the heliport was likely to significantly affect the environment (at 177). But in admitting the evidence his Honour sounded this warning (at 177-178):
I accept the submission of Mr Hemmings QC, on behalf of the board, that the matter for determination in these proceedings is not whether the court, on the material before it would conclude that the activity undertaken at piers 22 and 23 was an "activity likely to significantly affect the environment". That is, I reject the submission of Mr Bannon QC, on behalf of the council, that it is for this Court to substitute its own opinion for that of the board. As was pointed out in Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 and Guthega Pty Ltd v Minister Administering the National Parks and Wildlife Act (1985), the obligations imposed by s 111 and s 112 are not obligations measured by a standard of absolute perfection but are to be discharged in a reasonable and practicable manner. It would seem to me, therefore, that if it is open to a determining authority to conclude that a particular activity was not likely to significantly affect the environment, it is not open to this Court to substitute its own opinion for that of the determining authority...
...Gibbs J said (at 327 [in Parramatta City Council v Pestell [1972] HCA 59, 128 CLR 305]):
"A court has no power to override the council's opinion on such a matter simply because it considers it to be wrong. However, a court may interfere to ensure that the council acts within the powers confided to it by law. If, in purporting to form its opinion, a council has taken into account matters which the Act, upon its proper construction, indicates are irrelevant to its consideration, or has failed to take into account matters which it ought to have considered, the opinion will not be regarded as validly formed. Even if the council has not erred in this way an opinion will nevertheless not be valid if it is so unreasonable that no reasonable council could have formed it..."
Adopting that principle I am of the opinion that it was not reasonably open to the board to come to the conclusion that the activity for which it gave its approval was an activity that was not likely to significantly affect the environment.
244Jarasius was another challenge to the grant of logging licences and approvals in the absence of an EIS. In making findings as to the environmental damage that would be caused by the logging and in holding that the activity would be likely to significantly affect the environment within the meaning of s 112 of the EPAA (at 95), the Court had the benefit of a three day view of all relevant areas and activities and an "enormous amount of detailed written and oral, technical and scientific evidence as to impact and the adequacy of data and available research... explained by a large number of highly trained and experienced experts" (at 88). After reviewing the evidence, Hemmings J found that it was not reasonably open to the Commission to conclude that the timber harvesting activity was not likely to significantly affect the environment within the meaning of s 112(1) (at 95).
245In Drummoyne Municipal Council v Roads and Traffic Authority, however, Stein J refused to admit extraneous expert evidence to assist him in deciding if s 112 had been breached because to do so would be to usurp the opinion of the determining authority (at 164). But his Honour did have regard to evidence from a member of the relevant committee that had made the decision (to erect "No Standing" signs on a road) concerning the matters and material that had been taken into account by the committee in the course of making its decision. In rejecting the claim that ss 111 and 112 of the EPAA had been breached he said (at 163-164):
...I cannot be satisfied that in 1981, when the Technical Committee of the Traffic Authority made its decision that the activity be carried out, the activity was one likely to significantly affect the environment. Hence no environmental impact statement was required. In my estimation the effect of the activity on the environment was not a significant or notable one. It was something less than significant or notable. That is not to say that the effect was insignificant or unimportant. ...But on the material before the Technical Committee and its consideration, I could not conclude that the activity was likely to significantly affect the environment.
Indeed, were I to take into account the additional expert material placed before the Court by the parties, I would come to the same conclusion. However, I do not believe that I should substitute my opinion for that of the determining authority: Leichhardt Municipal Council v Maritime Services Board of New South Wales (1985) 57 LGRA 169 at 177. The question is not do I agree or disagree with the decision.
246Bailey again concerned a challenge to approve logging in a State forest absent an EIS. The parties called a large amount of extraneous lay and expert evidence. At issue was whether it was open to the Commission to conclude, as it had done, that the proposed logging in particular areas of a State forest was not likely to significantly affect the environment. Alternatively, the applicant framed the debate in terms of whether in fact, according to the Court's own determination, as distinct from that of the Commission, the proposed logging was likely to significantly affect the environment within the meaning of s 112(1). The Court had recourse to the extensive expert evidence to conclude that it was not reasonably open to the Commission to find that the activity would not. The Court, however, made the following remarks (at 211):
The legislation is silent as to the procedure to be implemented or guidelines to determine the likelihood of a significant impact of an environment and therefore the need for an environmental impact statement. It is of course a question of fact and degree. This has led to a number of challenges similar to this matter seeking to dispute the correctness of the conclusions of the public authority, and seeking declarations and orders setting aside the approval as a consequence of the alleged actual likelihood of a significant impact in the carrying out of the activity. This Court has consistently said it should decline to do so, even if it disagrees with the decision, if it is satisfied it was reasonably open to the determining authority; see Bentham v Kiama Municipal Council (1986) 59 LGRA 94, and the cases referred to therein. ...
...this Court must be "vigilant" not to exceed its supervisory role by reviewing an administrative decision on its merits: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
247And later (at 211, emphasis added):
In Pt V it is clearly not intended that an environmental impact statement be prepared with respect to all activities. The determining authority therefore has a duty as a condition precedent to carrying out or granting approval in relation thereto to determine the extent to which an activity is likely to affect the environment. In my opinion, in a review of the lawfulness of a decision made pursuant to Pt V, it is not the function of this Court to substitute its opinion for that of the Forestry Commission because the legislature has vested the determination of matters of fact in that body. Also, it is well settled that in the absence of any statutory indication it is for the decision maker and not the Court to determine the appropriate weight to be given to the matters which are to be taken into account in exercising the statutory duty pursuant to Pt V.
248Although not framed in the language of jurisdictional fact, Hemming J's use of the term "condition precedent" nevertheless correctly identifies, in my opinion, the nature of the power to be exercised by the decision-maker pursuant to s 112(1).
249The reasoning in Drummoyne and Bailey was endorsed and followed in Rundle. In Rundle, the second respondent, the Far North Coast County Council, directed the first respondent, Tweed Shire Council, to eradicate a noxious weed (groundsel) from the Tweed Shire Council's rural property. The Tweed Shire Council engaged the Far North Coast County Council to perform the eradication work. The Far North Coast County Council commenced spraying the property with a registered pesticide, and the applicant sought declaratory and injunctive relief. The Court admitted wide-ranging expert evidence going to whether the spraying of 2,4-D pesticide on the groundsel infestation was an activity that required environmental assessment under Pt 5 of the EPAA, and in particular, whether the spraying was an activity likely to significantly affect the environment within the meaning of s 112(1). Ultimately, it was held that the question did not arise because the spraying was not an "activity" within the meaning of s 110 of the Act. However, in obiter remarks Bignold J stated that the "threshold question" as to whether an activity was likely to significantly affect the environment could only be answered by the appropriate determining authority. It was not within the Court's jurisdiction, on a judicial review application, to answer this question itself. Consequently, although a "mass of scientific and medical evidence" had been admitted, this was "essentially irrelevant to the breach by the second respondent of the implied duty under s 112 to determine the threshold question" (at 330). His Honour said that (at 329-330):
The applicant submitted that the proper test in proceedings alleging a breach of s 112 is for the Court to determine for itself on the material placed before it whether the activity is likely to significantly affect the environment. It was submitted that this was the proper test for the Court to apply, flowed directly from the statutory concept of "breach of the Act" (s 122) and the nature of the Court's statutory jurisdiction to remedy or restrain such a breach (s 123 and s 124). Reliance was placed upon the judgment of the Court of Appeal in F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306.
This so-called "objective test" approach raises more acutely than does the judicial review approach the problem of what materials upon, and by reference to which, the relevant determination is to be made. In the present case the applicant's case, concerning likely environmental impact of the respondents' activity, relies upon evidence that was not, and because it came into existence later in point of time, could not have been before the respondents when they originally decided to carry out the activity. (The judicial review approach only allows evidence of materials actually or constructively within the knowledge of the determining authority at the time of decision.)
It would be a strange result indeed rendering s 112 practically unworkable if the Court was expected or enabled to determine what has been described in this context as the "threshold question" upon material not relevantly before the determining authority (that is, actually or constructively). This would have the effect of transferring to the Court original jurisdiction to determine the threshold question. This clearly is not the legislative intention because it does violence to the scheme of s 112 and must be rejected. Its rejection supports the prevailing view in this Court that the Court's function in proceedings alleging a breach of s 112 is that of judicial review of the implied obligation imposed upon a determining authority under s 112(1) to determine the threshold question of whether the relevant activity is likely to significantly affect the environment.
250His Honour's remarks have subsequently been interpreted as a finding that s 112 of the EPAA does not give rise to a jurisdictional fact (Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117 at [37] per Jagot J, in a decision concerning s 78A(8)(b) of the EPAA, formerly s 77(3)(d1), a successor to the provision under consideration in Timbarra).
251The next decision of significance is ULV Pty Ltd v Scott (1990) 19 NSWLR 190; (1990) 69 LGRA 212. Although not a case concerned with s 112 of the EPAA, it is convenient to mention it now given the reliance placed upon it by Dart and the Department in support of their argument that the Court could not have regard to expert scientific evidence in determining whether the Department had breached s 112. In ULV the relevant council had granted development consent to ULV to rebuild a fire damaged factory. The decision was challenged by neighbours on the grounds of manifest unreasonableness. Expert town planning evidence was admitted to demonstrate that the council's decision was unsupported on town planning grounds. The evidence was based on an inspection by the expert of the council files. At first instance the Court upheld the challenge. On appeal the decision was reversed. In so doing, Priestley JA (with whom Kirby P and Samuels JA agreed: at 192) held that the expert evidence was not admissible because it did not take into account what had occurred at the four council meetings and two site meetings prior to the decision being made (at 206-207). Given the divergent factual and legal underpinning of this case, I did not find it to be of assistance.
252The reasoning in Rundle was followed in Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGERA 186. In Drummoyne, the second respondent operated a marina in the council's local government area. The Maritime Services Board granted numerous approvals to the second respondent for additional moorings at the marina and to make these moorings permanent, and for pontoon and jetty additions. In granting the first approval for 20 additional moorings, the Board concluded that although an increase in the number of moorings at the marina was likely to significantly affect the environment, if certain conditions of consent were imposed there would be no such effect, and therefore, an EIS was not required under s 112(1). Before the Court was the Board's files. Stein J rejected the latter submission. In relation to the first approval, his Honour found that it was not reasonably open to the Board to form the view that the activity was one which was not likely to significantly affect the environment based on the conditions attached to the consent. However, in relation to the approval for pontoon and jetty additions, Stein J held that (at 199):
Carefully considering all the evidence placed before the Court I am unable to find that it was not reasonably open to the Board to conclude that the amended proposal was one which would not be likely to significantly affect the environment. The question is not whether the Court agrees with the Board's decision and in this regard I reject Mr Hale's submission as to the appropriate test, which, as he freely admits, is contrary to a number of decisions in this Court: Leichhardt Municipal Council v Maritime Services Board; Drummoyne Municipal Council v Road Transport Authority (NSW) and Rundle v Tweed Shire Council.
253The "appropriate test" referred to by his Honour was whether the Court itself was of the view that the amended proposal was one which would be likely to significantly affect the environment.
254Finally, in Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265 Cripps J, in assessing whether the construction of a 14.5 km freeway with a large toll plaza was an activity likely to significantly affect the environment for the purposes of s 112 of the EPAA, admitted expert evidence in order to assess whether the decision of the Authority that the activity was likely to significantly affect the environment was not reasonably open to it (at 274). This was, he held, a question for the Court to determine (at 274-275). Having decided that it was, and that the EIS was defective, his Honour held there had been a breach of the Act.
255To summarise, by 1999 the prevailing, albeit not uniform, position adopted by the Court in determining whether s 112(1) of the EPAA had been breached, was that the provision contained an obligation on the decision-maker to consider and decide whether the activity was likely to significantly affect the environment and that this was a matter for the determining authority only. The Court could not substitute its own opinion for that of the decision-maker unless the decision was not reasonably open to the decision-maker. Expert evidence could be admitted to assist the Court in reviewing the reasonableness of the decision (in the Wednesbury sense), but otherwise, whether or not the determining authority had breached the duty contained in s 112(1) of the EPAA, could only be determined on the material before the decision-maker.
256In 1999 Timbarra was decided. The decision is not actually concerned with s 112(1) of the EPAA. Rather, the principal issue dealt with by the Court of Appeal was whether the former s 77(3)(d1) of the EPAA (now s 78A(8)(b)) contained a jurisdictional fact. As alluded to above, s 112(1) is only mentioned in passing, but in so doing, Spigelman CJ likened s 112(1) to the former s 90(1)(c3) of the EPAA, which his Honour stated in obiter did not involve a jurisdictional fact (at [84]).
257In Timbarra, the appellant challenged the validity of a development consent granted by Tenterfield Shire Council, the second respondent, to the first respondent, a mining company, for the extension and modification of a proposed gold mine in the Malara State Forest. At the time, s 77(3)(d1) of the EPAA provided that:
A development application shall:
...
(d1) if the application is 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, be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995,...
258The Council, in granting consent, concluded that the proposed development would not have a significant effect on species and therefore that a species impact statement was not required and hence none was prepared. Accordingly, one of the issues raised on appeal was whether a species impact statement was required pursuant to s 77(3)(d1).
259At first instance (Timbarra Protection Coalition Inc v Ross Mining NL [1998] NSWLEC 19; (1998) 99 LGERA 345) Talbot J held that s 77(3)(d1) did not involve a jurisdictional fact and rejected the appellant's attempts to adduce evidence demonstrating whether or not the development would be likely to affect threatened species. His Honour only had regard to the material before the Council at the time it made its decision. His Honour approached the question in s 77(3)(d1) in a manner similar to the threshold question in s 112(1), namely, whether it was reasonably open for the Council to make the decision it did.
260The Court of Appeal (Spigelman CJ, with whom Mason P and Meagher JA agreed: at [123]-[124]) held that s 77(3)(d1) did give rise to a jurisdictional fact. Because of the central reliance placed upon this decision by the respondents, it is necessary to set out its reasoning in making this finding in some detail (at [37]-[42], [44] and [94]):
[37] The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute...The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence of presence of the fact will invalidate action under the statute (essentiality): Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517.
[38] "Objectivity" and "essentiality" are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of "essentiality" will often suggest "objectivity".
[39] Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes "jurisdictional fact" as some kind of "doctrine" is, in my opinion, misconceived. The appellation "jurisdictional fact" is a convenient way of expressing a conclusion - the result of a process of statutory construction.
[40] Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.
[41] Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.
[42] Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: see Craig, Administrative Law, 3rd ed (1994) at 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198C. Where such words do not appear, the construction is more difficult.
...
[44] The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.
...
[94] Taking all these factors into account, I have concluded that the decision as to whether or not a species impact statement is required plays such a significant role in the legislative scheme that it is appropriate to describe it as an "essential condition": Craig v South Australia (1995) 184 CLR 163 at 179 or "essential preliminary": Colonial Bank of Australasia v Willan (at 443); Ex parte Toohey; Re Butler (at 282; 102); Minahan v Baldock (at 11). It was accordingly a jurisdictional fact which the Land and Environment Court was obliged to decide for itself.
261An important element of Spigelman CJ's reasoning in arriving at this conclusion was based on a distinction he drew between ss 77(3)(d1) and 90(1)(c3) of the EPAA. At the time, s 90(1)(c3) provided:
In determining a development application, a consent authority shall take into consideration such of the following matters as are of relevance to the development the subject of that development application:
...
(c3) whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats,...
262In distinguishing between s 77(3)(d1) and s 90(1)(c3), Spigelman CJ said (at [32]-[33], [46]-[52]):
[32] In exercising that statutory power [under s 90(1)(c3)], the determination by a consent authority of "likely to significantly affect", is a matter incidental to the exercise of the power to grant consent. The reasoning in Londish, on which the applicant relied, would be more clearly relevant.
[33] However, s 77(3)(d1) does not confer a power on a decision-maker. It imposes a requirement on an applicant. The reasoning in Londish does not apply to such a statutory provision.
...
[46] In s 90(1)(c3), the issue of "significant effect" squarely arises in the context of the exercise of a statutory power by the consent authority and accordingly must necessarily be adjudicated upon by the consent authority. The use of the words "whether there is likely to be" indicates a decision on that matter by the consent authority. This is why, as I have said above, the reasoning in Londish is more clearly relevant to s 90(1)(c3).
[47] However, this case is not concerned with s 90(1)(c3). It is concerned with the almost identical formulation in s 77(3)(d1)...
[48] Section 77 does not involve, either explicitly or implicitly, the exercise of any statutory power by a consent authority. Section 77 is directed to the making of development applications by applicants, not the making of decisions by a consent authority.
[49] Section 77 lays down the requirements of an application. Such applications are referred to throughout the Act as being "determined" by the consent authority,...
[50] The making of an application by an applicant is preliminary to, and quite distinct from, the process of "determination" by a consent authority. A factual reference in a statutory formulation relating to the institution of a statutory decision-making process, is more likely, in my opinion, by reason of its extrinsic nature, to turn on an objective fact, than is a factual reference arising in, or in relation to, the conduct of the decision-making process itself.
[51] In the present case, the location of the relevant factual reference in a statutory formulation concerned with the requirements of an application, is a significant factor suggesting that the factual reference is jurisdictional.
[52] One formulation of the relevant distinction is whether the fact referred to is "a fact to be adjudicated upon in the course of the inquiry" as distinct from an "essential preliminary to the decision-making process": Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443.
263Critically for present purposes, his Honour, while discussing the application of the term "decision" to ss 77, 90 and 112, said (at [84], emphasis added):
The terminology of "decision" has a clear application in the case of s 90, which is concerned with a list of considerations which the consent authority is required to consider. Similarly in the case of s 112, a decision is required by the determining authority.
264Applying this analysis, Dart and the Department submitted that s 112(1) cannot give rise to a jurisdictional fact because "the factual reference ... necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power", and this is usually a determinative indication against the existence of a jurisdictional fact (Timbarra at [44], emphasis added). Section 112(1) provides that a determining authority cannot grant an approval for an activity that is likely to significantly affect the environment unless it has obtained an EIS in respect of that activity. The determination of whether an activity is likely to significantly affect the environment is incidental to the exercise of the power to grant approvals and does not give rise to a jurisdictional fact (Timbarra at [32]).
265Fullerton submitted that the remark by the Chief Justice at [84] is not binding and, in any event, seems to be inconsistent with the earlier reasoning where his Honour said (at [82]):
The present case has the unusual feature that a virtually identical form of words to that found in s 77(3)(d1) occurs at a later stage of the legislative scheme (s 90(1)(c3)), when a discretionary decision is plainly involved. The difference in treatment is, however, entirely explicable because of what follows from the relevant fact of "likely to significantly affect" at the two different stages of the process of granting or refusing consent. At the s 90 stage the relevant fact is one of many considerations to be taken into account. At the s 77 stage the consequence is the obligation to prepare a species impact statement.
266Fullerton further submitted that under s 112(1), the question of whether the activity is likely to significantly affect the environment is not required to be considered as part of any merit consideration (in contradistinction to s 90(1)(c3)). Rather, similar to s 77(3)(d1)), s 112(1) is a provision that consequently imposes the obligation to prepare an EIS after a preliminary factual inquiry is made. Accordingly, applying the reasoning in Timbarra, the factual reference in s 112 is jurisdictional in character and must be determined by the Court.
267Although not concerned with s 112 of the EPAA or a statutory provision containing the formulation "likely to significantly affect the environment", shortly after Timbarra, Pallas Newco was handed down. At issue was whether the characterisation of a use as a "drive-in take-away establishment", which was therefore permissible with consent, was a jurisdictional fact. Upon the proper construction of the legislative scheme conferring jurisdiction (s 77(a) of the EPAA), the Court held that it was.
268In Pallas Newco Spigelman CJ relevantly stated the following principles (at [46]-[49]):
46 Finally, as the Privy Council identified in a seminal authority on this area of the law (Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443), there is a distinction between a fact that is an "essential preliminary to the decision-making process" and a "fact ... to be adjudicated upon in the course of the inquiry". (See also, e.g. Amalgamated Society of Carpenters and Joiners v Haberfield Pty Ltd [1907] HCA 37; (1907) 5 CLR 33 at 53; Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31 at 33.)
47 The word "preliminary" does not, in this context, refer to a chronological sequence of events, but to matter that is legally antecedent to the decision-making process. A decision-maker may well determine whether or not s/he has jurisdiction at the same time as s/he carries out the substantive decision-making process.
48 The extrinsic or ancillary or preliminary nature of the relevant fact makes it more likely that the fact is jurisdictional. (See Colonial Bank of Australasia v Willan at 443; R v Nat Bell Liquors Limited [1922] 2 AC 128 at 158; Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 300; Ex parte Hulin; Re Gillespie at 33; Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 55 FCR 516 at 539; Timbarra Protection Coalition at [44] and [50]-[60]. See also M Aronson, "The Resurgence of Jurisdictional Facts" (2001) 12 Public Law Rev 17 at 34.)
49 A factual reference that is appropriately characterised as preliminary or ancillary to the decision-making process or which is, in some other manner, extrinsic to the facts and matters necessary to be considered in the exercise of the substantive decision-making process itself, is a reference of a character that the Parliament intended to exist objectively.
269In outlining the indicators against jurisdictional fact, his Honour opined that (at [56]-[61]):
56 Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction.
57 Determining whether a factual reference is jurisdictional in the context of classification under an environmental planning instrument will depend on the way the classification is expressed. The degree of flexibility which the Act permits with respect to the description of uses is such that Parliament must be taken to have authorised the adoption of classifications which are not jurisdictional as well as those which are jurisdictional.
58 For example, an environmental planning instrument may require the assessment of a wide range of matters of considerable complexity involving the formation of value judgments. Such a decision-making process is unlikely to involve a jurisdictional fact. (See, e.g. the High Court's endorsement in Australian Heritage Commission v Mount Isa Mines [1997] HCA 10; (1997) 187 CLR 297 at 303-304 of the judgment of Black CJ in Australian Heritage Commission v Mount Isa Mines (1995) 60 FCR 456 at 465-466, an approach also affirmed in Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; (1999) 86 FCR 266 at 272.)
59 The decision to grant consent, which is based on a wide range of broadly stated considerations set out in s79C of the Act, is a decision of that character. In my opinion, the process of characterisation of a particular development of the character involved here is not.
60 It is not always the case that matters of judgment involved in determining the existence of facts, let alone matters of fact and degree, mean that the fact is not jurisdictional. For example:
· whether or not a report about an employee was "substantially favourable" was found to be an objective test. (See Sutherland Shire Council v Finch [1970] HCA 49; (1969) 123 CLR 657 at 663-666 and see below Sutherland Shire Council v Finch (1970) 71 SR(NSW) 315 at 324-325 per Mason JA as his Honour then was.)
· whether development was "likely to significantly affect threatened species" was found to be jurisdictional. (Timbarra)
· whether an industry was "likely ... to produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land" was found to be jurisdictional. (City of Enfield fn 16, [6] and [28].)
· whether a particular service was "necessary" for the purpose of enabling the supply of a broadcasting service was jurisdictional. (Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589; (2000) 173 ALR 362 at [123]- [124].)
· whether property "may be material as evidence in proving" an offence for which extradition is sought was jurisdictional. (Cabal v Attorney General (Cth) [2001] FCA 583; (2001) 113 FCR 154 at [19], [74]-[76].)
· the High Court divided equally on whether or not a test expressed in terms of the existence of an "irregularity" constituted a jurisdictional fact. (R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351.)
61 In each case it was the overall statutory context that proved determinative as to whether or not Parliament intended the existence of the fact to both objectively exist and be essential, notwithstanding the element of fact and degree, or even of judgement, that was required in the process of determining whether or not the relevant fact existed.
270In City of Sydney Council v Royal Botanic Gardens and Domain Trust [2004] NSWLEC 285, the Trust decided to remove 11 trees in the Domain suffering from poor health in order to plant 33 new trees. The council challenged the validity of the decision partly on the ground that the removal was an activity that was likely to significantly affect the environment within the meaning of s 112(1). The Trust had breached this section by not preparing an EIS. Justice Lloyd delivered an ex tempore judgment. His Honour held that the removal of 11 trees from an area of over 3000 trees was not an "activity" within s 110 of the EPAA. In case he was wrong, however, his Honour decided the threshold question in s 112(1) for himself, namely, whether the removal of the trees was likely to significantly affect the environment. He held that it would not. In so doing, Lloyd J appears to have assumed that s 112(1) involved a jurisdictional fact which the Court could determine for itself. Having said this, a separate ground of challenge in the proceedings was that the decision to remove the trees was manifestly unreasonable, which Lloyd J rejected after considering the expert evidence adduced by the parties.
271A similar assumption appears to have been made by his Honour in 2008 in Goldberg. At issue in that case was the construction of a driveway and whether, pursuant to s 112 of the EPAA, the Court, exercising the power of the relevant roads authority as the determining authority, was required to examine and consider an EIS in deciding to grant consent (at [62]). His Honour determined for himself, based in part on the evidence of visual impact experts, whether or not the construction would be likely to significantly affect the environment (at [63]).
272As stated above, Parks and Playgrounds, handed down in 2010, is the only decision in which an explicit pronouncement has been made on whether s 112 of the EPAA involves a jurisdictional fact. In that case Biscoe J stated that it did (at [132]):
Under s 112, if the removal of the Trees is likely to significantly affect threatened species or their habitats, a species impact statement is required. That likelihood is a jurisdictional fact for the Court to determine: Timbarra Protection Coalition Inc v Ross Mning NL (1999) 46 NSWLR 55; 102 LGERA 52.
273In Parks and Playgrounds, the applicant challenged the council's decision to remove 14 fig trees along a street in Newcastle pursuant to s 88 of the Roads Act 1993 on the grounds that:
(a) the removal of the trees was a development which required consent under Pt 4 of the EPAA and no consent had been applied for or had been given;
(b) alternatively, if development consent was not required, the removal of the trees was an activity within Pt 5 of the EPAA and the council had breached s 111; and
(c) alternatively, if s 111 had been complied with, the council had breached s 112.
274The council contended that on its proper construction, s 88 of the Roads Act was a freestanding provision which did not require development consent under Pt 4 of the EPAA and did not have to satisfy the requirements of either ss 111 or 112 in Pt 5 of that Act. The primary issue therefore was whether s 88 was subject to the requirements of Pts 4 or 5 of the EPAA. The Court held that the council had the power to remove the Trees under s 88 of the Roads Act and that the exercise of the power was not governed by Pts 4 or 5 of the EPAA. However, Biscoe J went on to consider the alternative arguments raised by the applicant and extraneous evidence from bat experts was admitted going to the question of whether the removal of the trees was likely to significantly affect threatened species and their habitats, especially the Greater Broad-nosed bat, a threatened and vulnerable species (at [135]-[151]). On the basis of this evidence Biscoe J held that, if s 112 were applicable, then on the material before him, as a jurisdictional fact, the removal of the Trees was not likely to have a significant effect on threatened species or their habitats (at [155]).
275Finally, in Oshlack, the respondents were granted approvals and given a direction to add fluorine to particular public water supplies. In order to facilitate this the respondents resolved to approve the construction of certain fluoridation plants. The applicant challenged the validity of these resolutions. The Court was concerned with a preliminary question as to whether the respondents were required to comply with ss 111 and 112 of the EPAA with respect to the impacts on human health and the environment of adding fluorine to the water supply when determining to approve the construction of the fluoridation plants. Whether s 112(1) involved a jurisdictional fact was not strictly in issue, but Biscoe J stated that (at [5]-[6]):
If s 112 of the EPA Act applied, there was a jurisdictional fact, which the Court would determine at the final hearing, whether the activity of adding fluorine to the water supply is likely to significantly affect the environment or threatened species, populations or ecological communities, or their habitats. ...
If s 112 did not apply, as the respondents contend, it will be unnecessary for the parties to call (as they otherwise will) expert scientific evidence as to a jurisdictional fact in s 112. Consequently, the duration of the final hearing is likely to be much reduced and will only be concerned with residual issues. That is the rationale for the preliminary questions.
276When the matter came to be decided on a final basis, however, the applicant abandoned the alleged breach of s 112 of the EPAA (Oshlack (No 2)).
277Accordingly, the current post Timbarra s 112 jurisprudence may be summarised as follows, namely, that the decision in Timbarra appears to be equivocal on the issue of whether s 112 gives rise to a jurisdictional fact. On the one hand there are remarks made by Spigelman CJ in that case suggesting that it does not, while on the other, there is at least one decision in this Court (Parks and Playgrounds) that has held that it does.