Gales Holdings Pty Ltd v Minister for Planning & Anor

KEY ISSUES: Judicial Review :- whether formation of requisite opinion for categorisation of development a jurisdictional fact.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Interpretation Act 1987 State Environmental Planning Policy No. 62 - Sustainable Aquaculture

Chambers v Maclean Shire Council (2003) 57 NSWLR 152; Gales Holdings Pty Ltd v Minister for Planning & Another [2006] NSWLEC 347; Helman v Byron Shire Council (1999) 87 LGERA 349; CASES CITED: Minister for Planning & Anor v Gales Holdings Pty Limited [2006] NSWCA 212; Parramatta City Council v Pestell (1972) 128 CLR 305 ; Slack-Smith & Anor v Director-General Department of Land and Water Conservation (2003) 132 LGERA 1; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Woolworths Ltd v Pallas Newco Pty Limited (2004) 61 NSWLR 707

DATES OF HEARING: 05/06/2006, 06/06/2006, 14/06/2006 (written submissions), 01/08/2006

APPLICANT Mr T F Robertson with Mr J E Lazarus (barrister) SOLICITORS Woolf Associates

FIRST RESPONDENT Mr N J WIlliams SC LEGAL REPRESENTATIVES: with Ms H P Irish (barrister) and Ms A M Mitchelmore (barrister) SOLICITORS Department of Planning

SECOND RESPONDENT Dr J E Griffiths SC SOLICITORS Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40246 of 2006 Gales Holdings Pty Ltd v Minister for Planning & Anor

JUDGMENT 1 Talbot J: After a three day hearing that commenced on 5 June 2006, followed by further written submissions, I delivered a judgment in this matter on 23 June 2006 (Gales Holdings Pty Ltd v Minister for Planning & Another [2006] NSWLEC 347). The second respondent had pressed the urgency for obtaining an early determination by the Court. The judgment was made available in seven working days after final submissions. 2 Thereafter the respondents appealed to the NSW Court of Appeal where, after an expedited hearing, judgment was delivered at 2:15 pm on 31 July 2006 (Minister for Planning & Anor v Gales Holdings Pty Limited [2006] NSWCA 212). On that same day the second respondent filed in this Court a Notice of Motion seeking expedition of the remitted proceedings to facilitate the second respondent meeting a commercial deadline of today. 3 The Notice of Motion was heard at 9:30 am on Tuesday 1 August 2006. At that hearing it became apparent that an order for expedition was not appropriate because all parties agreed no further hearing was necessary as all evidence and submissions relied upon by the parties had been given or made. I was nevertheless asked to use best endeavours to deliver a judgement by the end of this week. This I have done. 4 The facts underlying the proceedings are adequately dealt with by me in the earlier judgement and by Hodgson JA who delivered the leading judgment in the Court of Appeal. Nothing further needs to be said in that respect. 5 Under cl 13(3) of State Environmental Planning Policy No. 62 - Sustainable Aquaculture ("SEPP 62"), the consent authority is not to consent to aquaculture development unless it has first categorised the development in accordance with cl 13 after receiving adequate information from the applicant for that purpose. 6 Clause 13(1) provides that proposed aquaculture development is to be categorised for the purpose of determining the level of assessment of applications for development consent. The development is to be categorised in accordance with the opinion of the consent authority formed having regard to the relevant project profile analysis ("PPA"). 7 The Director General is required to publish a PPA in the NSW Gazette in accordance with cl 12 of SEPP 62. It is not in contention that the proposed development is "tank-based aquaculture" as defined in SEPP 62. 8 The PPA for aquaculture in tanks is contained in the NSW North Coast Aquaculture Strategy published in August 2000. The PPA has been developed to enable a preliminary evaluation of the risks associated with site selection, species, design and planning and operational criteria. The site selection criteria provides two of the environmental sieves to determine the acceptability of risks. Tier 1 information is available from Government or Council sources whereas Tier 2 information will need to be obtained from the site investigation or studies. 9 Under Tier 1 stock species indigenous to the catchment are identified as level 1 risk. Under Tier 2, dealing with hydrology issues where the site is below the 1 in 100 year flood level, but the work can be constructed so that it is unlikely to be inundated during that event, there is a level 3 risk assessment for non-indigenous species to the catchment. 10 According to the applicant, as the development involves species which are not indigenous to the catchment and the site is below the 1 in 100 year flood level, there is a level 3 risk. That has the consequence that the development is to be categorised as class 3 pursuant to cl 13(2) of SEPP 62. 11 Clause 14(1) of SEPP 65 provides that development categorised as class 3 aquaculture development is designated development for the purposes of the Environmental Planning and Assessment Act 1979 ("EP& A Act"). 12 The applicant alleges that the Minister did not categorise the development in accordance with cl 13 because it did not determine the class of the development as class 3 designated development and therefore had no power to grant consent to the development application. 13 Alternatively the applicant alleges it was not reasonably open to the Minister to categorise the development as class 2 aquaculture development. Moreover it was not reasonably open to categorise the development as anything other than class 3 aquaculture development. 14 Further or alternatively the first respondent erred in law in categorising the development for the purposes of cl 13 by misconstruing the reference to "catchment" in the project profile analysis Tier 2 Site Evaluation table which contains the site evaluation criteria for aquaculture undertaken exclusively in tanks. 15 Again, further or alternatively the effect of clauses 13 and 14(1) of SEPP 62 was that the development application was for designated development and as the development application was not determined on the basis that it was in respect of designated development the purported development consent is invalid. 16 The applicant relies upon expert evidence to demonstrate that the Bay Lobster species Thenus spp is (or rather the species Thenus Orientalis and Thenus Indicus are) not indigenous to the catchment of the Tweed River. Further (as the Statement of Environmental Effects in respect of the proposed development is claimed to make clear) the land is sited between 0.4 m and 1.4 m AHD. The predicted 1 in 100 year flood level is 3.6 m AHD at this site. Thus, as a matter of fact, the appropriate categorisation of the proposed development was as class 3 not class 2 as the Minister categorised it. 17 The admission of expert evidence to support the applicant's case is conditional upon a finding of relevance. Relevance will depend upon whether the evidence is concerned with proving the categorisation of the development, having regard to the criteria in the project profile analysis as a jurisdictional fact. However if the jurisdictional fact is the formation of the relevant opinion referred to in cl 13, different considerations apply. 18 Clause 13 provides: 13 Categorisation of development having regard to project profile analysis . (1) For the purposes of determining the level of assessment of applications fro development consent under this Policy, the proposed aquaculture development is to be categorised in accordance with the opinion of the consent authority formed having regard to the relevant project profile analysis, as follows: (a) Class 1 - Non-designated development (low-level risk), (b) Class 2 - Non-designated development (medium -level risk), (c) Class 3 - Designated development.

(2) The relevant class is to be determined as follows: (a) Class 1 - If all the risk levels in relation to each attribute are Level 1, (b) Class 2 If all the risk levels in relation to each attribute are Level 2 or Levels 1 and 2, (c) Class 3 - If any risk level in relation to an attribute is Level 3 (3) The consent authority is not to consent to aquaculture development under this Policy unless it has first categorised the development in accordance with this clause after receiving adequate information from the applicant for that purpose. 19 In the material lodged in the support of the development application the applicant contended that the proposed development would be a class 2 aquaculture development as the risks caused by the development in relation to each of the criteria in the project profile analysis where either Level 1 or Level 2. 20 That assessment was embraced by the Department of Planning and other government agencies involved in the evaluation process. It is reasonable to assume that the Minister based his decision upon the Assessment Report prepared by the Department of Planning in December 2005. 21 The Statement of Environmental Effects prepared in support of the development application on behalf of the applicant by Planit Consulting Pty Ltd in September 2004 addresses the relevant criteria to be considered in the PPA on the basis that Thenus spp is indigenous to NSW and it is consistent with translocation policy and in particular is an indigenous species to the subject catchment. 22 Following an analysis of that criteria the following statement is made: In summary, the proposal can be defined as Class 2 under clause 13(2) (i.e. all risk levels in relation to each attribute are level 2 or levels 1 and 2). It follows pursuant to clause 14(f) of the instrument, that if the proposal can properly be categorized as Class 2, then it would not be classified, as designated development and therefore an Environmental Impact Statement would not be required. 23 No contrary opinion appears to have been presented to the Minister prior to the making of his determination. The Assessment Report specifically refers to a consideration of the proposal against the project profile analysis presented at a Planning Focus Meeting in which representatives of the Department of Primary Industries, Council and the Department of Planning were present. 24 The report advised the Minister that: All the agencies present at this meeting including the Department were satisfied with the Applicant's consideration of the proposal against the PPA and conclusion that it would be a Class 2 aquaculture development. 25 The complaint by the applicant is that the Department of Planning in reporting to the Minister fundamentally misconstrued the meaning of the word "catchment" in the PPA thereby leading to the erroneous conclusion that the Thenus spp was indigenous to the catchment. This is said to be because both Thenus lobster species are fully marine in their requirements and are found overwhelmingly in salt water. Neither is an estuarine species. It is also the case, so the argument goes, that the Department has misconstrued the meaning of the word "indigenous". 26 It is claimed by the applicant that both of these matters were a "fundamental element in" or "focal point of" the decision making process and the Minister was required to take them into account when forming the opinion specified in cl 13(1). Thus the effect of misconstruing the meaning of the words "catchment" and "indigenous" in the PPA has the consequence that any opinion formed by the Minister as to the appropriate level of categorisation of risk is not an opinion as required by cl 13 and therefore, according to the applicant, the Minister erred in law and the error is sufficient to vitiate the consent granted by the Minister. Moreover, the Minister's alleged failure to categorise the development in accordance with cl 13 was in breach of cl 13(3) because he did not determine the class of the development as class 3 designated development, as he was required to do if any risk level in relation to an attribute was Level 3. It is said that no other conclusion was reasonably open to the Minister and therefore the decision to categorise the development as a class 2 development was manifestly unreasonable. 27 A further consequence alleged is that as the development application was for designated development, being a class 3 development, it was necessary to meet the strict regime of assessment required for designated development under the EP&A Act including the preparation and submission of an Environmental Impact Statement. 28 The result, so the applicant contends, is that the development consent granted by the Minister is invalid.

29 The applicant relies upon the provisions of s 42(1) the Interpretation Act 1987 to support an argument that not only is the PPA a document given statutory force under cl 13 of SEPP 62 and gazetted under cl 12 but it is incorporated by reference into the SEPP. Section 42(1) provides: 42 Matters for which statutory rules may make provision (1) If an Act authorises or requires provision to be made for or with respect to any matter by a statutory rule, such a rule may make provision for or with respect to that matter by applying, adopting or incorporating, with or without modification, the provisions of any Act or statutory rule or of any other publication, whether of the same or of a different kind. 30 It is claimed therefore, that the Minister's misconstruction of the terms of the PPA was a misconstruction of the terms of SEPP 62 itself. Thus, the PPA is no mere administrative guideline. 31 Clause 12 of the SEPP which deals with project profile analyses speaks of the document as a separate entity. It does not provide that it be incorporated within the SEPP. Clause 12 prescribes the preparation of a PPA but does not in terms apply it or adopt it for any purpose. The relevant PPA is merely a document to which the consent authority is referred for the purpose of forming the opinion required by cl 13(1). Section 42 of the Interpretation Act does not apply in this case, in my opinion. 32 The applicant accepts that the categorisation to be undertaken by the Minister under cl 13(1) is undoubtedly a matter in respect of which the Minister must form an opinion. However the process of classification under cl 13(2) is said to be a jurisdictional fact because the SEPP posits a purely objective analysis of the determination of the relevant class. No opinion is required to be formed under cl 13(2). Therefore the clause demands an objective inquiry, which is preliminary or ancillary to the exercise of the statutory power to categorise the development and determine the application. 33 Because the determination of the relevant class under cl 13(2) leads to a decision as to whether an EIS is required in respect of designated development, cl 13(2) therefore effectively determines whether an EIS is required. For the above reasons the applicant submits that consistent with authority the classification decision required to be made under cl 13(2) is "jurisdictional" (Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Helman v Byron Shire Council (1999) 87 LGERA 349; Chambers v Maclean Shire Council (2003) 57 NSWLR 152). Accordingly, the factual inquiry as to whether any risk level is of a particular class is, according to the applicant, a jurisdictional fact. Therefore evidence will be admissible on the factual question of whether the lobsters in question are indigenous to the catchment of the Tweed River. 34 Even if cl 13(2) provides for the establishment of a jurisdictional fact, as Mr Robertson SC contends, the categorisation of the development is dictated by cl 13(1) based upon the opinion of the consent authority. The matters in the PPA are matters that the consent authority is required to have regard to. 35 The following summary from the judgment in Slack-Smith & Anor v Director General Department of Land and Water Conservation (2003) 132 LGERA 1 at [70] is a useful statement of the tests the Court is to apply in cases such as the present: Relying on the test of invalidity summarised by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 that "if a decision on a competent matter is so unreasonable that no reasonable authority could ever come to it, then the courts can interfere" does not require the court to determine the soundness of the decision-maker's opinion; it is sufficient if the opinion expressed is one reasonably open to that person ( Parramatta City Council v Pestell (1972) 128 CLR 305, 27 LGRA 72). There is a distinction between where there is a jurisdictional fact that must be proved to the court's satisfaction and where what is in issue is not a jurisdictional fact but the decision-maker's opinion as to the existence of that fact ( Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135, 106 LGERA 419). 36 The High Court in Parramatta City Council v Pestell (1972) 128 CLR 305 at 323 raised the distinction between justifiable opinion and sound opinion. The former is one reasonable open to the decision maker based on the material before it. Whether it is sound or not is not a question for decision by a Court. 37 In Woolworths Ltd v Pallas Newco Pty Limited (2004) 61 NSWLR 707 the Chief Justice discussed indicators of jurisdictional fact as well as indicators against jurisdictional fact. That analysis is helpful in the present case. At [53] Spiegelman CJ identified as the first factor which may support the conclusion that the appropriate classification of the proposed development is not jurisdictional concerns the element of fact and degree involved when determining whether or not a particular proposal answers the statutory description. In this context he made the following observations: [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) 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) 86 FCR 266 at 272.) 38 The explanatory notes to the evaluation criteria explain that the way in which the PPA for tanks is intended to be applied is as a sieve. The introduction to the PPA itself recommends that Tier 2 Evaluation "should provide sufficient information for an informed decision to be made so that there will be no unpleasant surprises later, resulting in costly management options". It is clearly an assessment process requiring evaluation and the formation of opinion. 39 The categorisation of development having regard to the PPA is in terms "the opinion of the consent authority formed having regard to the relevant project profile analysis". The formation of the opinion may itself be a jurisdictional fact as a consequence of the extrinsic, ancillary or preliminary nature of the opinion (Pallas Newco at [48]). However, there is nothing directive about the manner in which the opinion of the consent authority is to be formed other than the requirement to have regard to the relevant PPA. 40 The development answers the statutory prescription for categorisation pursuant to cl 13 as a consequence of the formation of the opinion. Thereafter, the process for determination is determined by a classification into which the development is categorised according to the assessed level of risk. 41 Part 2 of SEPP 62 deals with permissibility and establishes the relevant jurisdictional facts upon which the Minister can act on receipt of a development application for permissible aquaculture development. 42 The operation of subclause 13(2) in the SEPP is entirely consequential and dependent upon the formation of the opinion expressed in subclause 13(1). The applicant relies only upon 13(2) for its argument in relation to jurisdictional fact. In my opinion cl 13(2) does no more than apply the consequences of cl 13(1). 43 I agree with the submission put by Dr Griffiths SC, who appears for the second respondent, that subclause 13(2) is entirely consequential upon subclause 13(1) and is in effect a purely mechanical provision which simply flows from the categorisation exercise carried out under subclause 13(1). 44 Clause 13(3) requires that before consent is granted the aquaculture development must first be categorised in accordance with cl 13 after having regard to the facts, which are provided in the separate strategy document. 45 According to the Executive Summary of the NSW North Coast Sustainable Aquaculture Strategy, the strategy comprises two interlinked components namely a best management component and an integrated approval component. The PPA provides an "up front" preliminary assessment of the likely level of risk to the environment. In my view therefore it was not unreasonable for the Minister to form the requisite opinion under cl 13 in circumstances where he had received a comprehensive report on the subject, which categorised the development in accordance with the recommendation made to him backed up as it was by the material in the report itself and the corroboration of other agencies including his own department. It was not manifestly unreasonable of the Minister to accept that advice and analysis and he was not bound to go beyond that material in order to ensure that he took into account all of the relevant factors necessary to enable him to reach the requisite opinion. Whether or not the words "catchment" and "indigenous" were misconstrued, if indeed they were, is irrelevant for present purposes in the context of judicial review. 46 The Minister had before him appropriate advice to dealt with those matters and there was nothing manifestly irrational about his decision to act on that advice. 47 There is no ground for judicial review of the Minister's opinion formed pursuant to cl 13(1). The application to set aside the determination of the relevant class in accordance with cl 13(2) will be dismissed. Accordingly, it follows that the determination of the development as class 2 is upheld. The categorisation of the development as class 2 means that it is not designated development and the requirements of the EP&A Act in respect of designated development have no application. 48 In the circumstances of the abovementioned findings the expert evidence relied upon by the applicant is irrelevant. 49 The formal orders are:

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