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: