Hill Top Residents Action Group Inc v Minister for Planning

Hill Top Residents Action Group Inc v Minister for Planning - [2009] NSWLEC 185 - NSWLEC 2009 case summary — Zoe

[7]

Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3, (2008) 166 FCR 54 Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261, (2005) 63 NSWLR 557 Barrick Australia Ltd v Williams [2009] NSWCA 275, (2009) 168 LGERA 43 Chambers v Maclean Shire Council [2003] NSWCA 100, (2003) 57 NSWLR 152 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, (2007) 151 LGERA 400 CIC Insurance Ltd v Bankstown Football Club Ltd (1995-1997) 187 CLR 384 Clark v Ryan (1960) 103 CLR 486 Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69, (2009) 167 LGERA 52 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, (2000) 199 CLR 135 Dates v Roads and Traffic Authority (NSW) Pty Ltd [2009] NSWLEC 82, (2009) 167 LGERA 82 Dowe v Commissioner of the New South WalesSW Crime Commission [2007] NSWCA 296 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, (2008) 236 CLR 120 I W v City of Perth (1997) 191 CLR 1 Kindimindi Investments Pty Ltd v Lane Cove Council ([2006] NSWCA 23, (2006) 143 LGERA 277 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211 CASES CITED: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705 Mid-Western Community Action Group Inc v Mid-Western Regional Council [2007] NSWLEC 411 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48, (2008) 82 ALJR 1505 Minister for Immigration and Citizenship v SZJGV (2009) HCA 40 Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 Newcastle City Council v Royal Newcastle Hospital (1956-1957) 96 CLR 493 Peters v Manly Municipal Council [2007] NSWCA 343 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR 389 Re Bolton Ex parte Beane (1987) 162 CLR 514 Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57, (2000) 204 CLR 82 Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87, (2007) 153 LGERA 372 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 SAAP v Minister for Immigration [2005] HCA 24, (2005) 228 CLR 294 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55 Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6, (1999) 46 NSWLR 78 Weal v Bottom (1966-67) 40 ALJR 436 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707

[18]

8 There are two issues: (a) whether, on its proper construction, cl 11 prohibits the Project development on the site. The applicant says that this is so either on its construction of cl 11 or on the respondents' competing construction; (b) whether cl 11 applies to the approval of the Project. It is common ground that cl 11 applies to the carrying out of the Project: s 75R(2)(b). However, the second respondent (but not the first respondent) submits that it does not apply to the approval of the carrying out of the Project. If the second respondent is correct but cl 11 prohibits the carrying out of the Project, the only consequence is that the approval is valid but that the carrying out of the Project is unlawful and liable to be restrained. The second respondent's point is therefore narrow and focused on the form of relief. Background 9 In order to assess the applicant's case, it is necessary to consider the statutory process by which in 2007 the Project came to be a project to which Part 3A of the EPA Act applies, in 2008 land use zoning and development controls for the Project site were introduced by an amendment to the Major Projects SEPP, and in 2009 the Minister approved the Project under Part 3A. 10 Proposals for the development of land which require consent are generally assessed and determined under Part 4 of the EPA Act by local councils. Since 1 August 2005 separate provision has been made in Part 3A (ss 75A - 75ZA) for assessment and determination by the Minister of projects declared under s 75B to be a project to which Part 3A applies by a State environmental planning policy or by order of the Minister published in the Gazette. The kind of development that may be so declared includes major infrastructure projects and development that, in the opinion of the Minister, is of State or regional planning significance: s 75B(2). 11 Section 75J empowers the Minister to approve the carrying out of a project: " 75J Giving of approval by Minister to carry out project

[22]

15 Clause 6(1) of the Major Projects SEPP provides that development that is, in the opinion of the Minister, development of a kind that is described in Schedule 1 or that is described in Schedule 3 as a project to which Part 3A of the Act applies, is declared to be a project to which Part 3A of the Act applies. Development of a kind that is described in Schedule 1 includes major sporting facilities described in cl 15 of Schedule 1. The relevant major sporting facility is described in cl 15(3): "Development for the purpose of a regional shooting complex where two or more shooting clubs or ranges within a defined region are consolidated into a single site." 16 Minutes dated 26 September 2006, 20 April 2007 and 20 August 2007, record that the Minister formed the opinion on each of those dates that the Project was a development of the kind described in cl 15(3), and was thus declared to be a project to which Part 3A of the EPA Act applies for the purpose of s 75B. 17 The first of those opinions was revoked in the minute of the second. The second opinion was revoked in the minute of the third. The reason for the revocations was that the Project proposal had been modified after the first and again after the second of those dates. The description of the Project in the final minute was as follows: "A proposal for the redevelopment of the Hill Top Rifle Range (part lot 100 in DP 1088254 Wattle Ridge Road, Hill Top) generally as described in the letter and documentation titled Southern Highlands Regional Shooting Complex Preliminary Assessment (dated 23 August 2006) from GHD [the proponent's consultant] to the Department of Planning and as amended by the letter from GHD to the Department of Planning dated 6 August 2007 and supplementary documentation." 18 Also on 26 September 2006, the Minister agreed to commence the process of amending the Major Projects SEPP to include the Project site in Schedule 3 to the Major Projects SEPP. 19 The declaration of the Project as a project to which Part 3A applied led to the carrying out of the following environmental assessment process prescribed by Part 3A: (a) in November 2006 environmental assessment requirements were issued by the Director-General of the Department of Planning under s 75P; (b) in August 2007 modified environmental assessment requirements were issued; (c) in February 2008 an environmental assessment was submitted on behalf of the proponent pursuant to s 75H; (d) in May 2008 the Minister purported to constitute an independent panel of experts to assess the Project under s 75G and the panel reported in August 2008; and (e) on 3 October 2008 the Director-General gave an environmental assessment report to the Minister pursuant to s 75I, recommending that the Minister approve the carrying out of the Project subject to conditions and sign the attached Determination. The report included, as required by s 75I(2)(c), a copy of the report of the independent panel of experts. The report also noted that in September 2006 the Minister had agreed to commence the process of amending the Major Projects SEPP to include the Project site as a State significant site in Schedule 3. 20 On 10 October 2008 the Minister's recommended to the Governor that the Governor make Major Projects SEPP Amendment No 33 to list the Southern Highlands Regional Shooting Complex as a State significant site in Schedule 3 to the Major Projects SEPP. The purposes of the proposed amendment and how it achieved the purposes were identified as follows: "In summary, the purpose of the proposed SEPP is to: · make land and the Southern Highlands Regional Shooting Complex site as State Significant site; · establish appropriate land use zonings; · protect land of environmental conservation value with environmental protection zoning; · identify land appropriate for shooting facility development; · establish development controls over the site.

[24]

The proposed zones are as follows: * SP1 - Special Uses The SP1 zone has an area of 136 hectares. The zone is to permit shooting ranges and support infrastructure that would include works such as clubhouses, internal roads and water storage ponds. * E2 - Environmental Protection The E2 zone has an area of 900 hectares and is primarily for the protection of native vegetation. Only limited works are permitted in the zone, including environmental protection works, drainage works, environmental facilities and roads. This will also ensure that there will be no activities permitted that conflict with the range danger templates (a requirement by the NSW Firearms Registry, for the purpose of capturing stray bullets from shooting ranges)." 21 On 17 October 2008 the Project site came to be described as a State significant site in Schedule 3 to the Major Projects SEPP upon gazettal of State Environmental Planning Policy (Major Projects) 2005 (Amendment No 33). The aims of Amendment No 33 are stated in cl 2: "(a) to identify the land to which this Policy applies (being the Southern Highlands Regional Shooting Complex) as a State significant site under State Environmental Planning Policy (Major Projects) 2005 , and (b) to establish appropriate zoning and other development controls for the site, and (c) to provide for appropriate development on the site that satisfies the principles of ecologically sustainable development, and (d) to encourage the establishment of the Southern Highlands Regional Shooting Complex." 22 Amendment No 33 amended Schedule 3 to the Major Projects SEPP by inserting Part 33 into the Schedule. Part 33 is titled, and the land referred to therein is described as, the "Southern Highlands Regional Shooting Complex Site". Amendment No 33 (in cl 3) and Part 33 (in cl 1) are expressed to apply to the land shown on the Southern Highlands Regional Complex - Land Application Map held in the head office of the Department of Planning. That land comprises the whole of the Project site. The Land Application Map divides the Project site into two zones. The smaller zone is Zone SP1 Special Activities on which appear, on the map, the words "Shooting Range". The larger part, which surrounds the smaller zone (except for the portion fronting Wattle Ridge Road), is Zone E2 Environmental Conservation. 23 The Project development was prohibited on the Project site under the Wingecarribee Local Environmental Plan 1989 (LEP) because it zoned the Project site 1(a) (Rural "A" Zone) and prohibited recreation facilities in that zone. By snakes and ladders statutory provisions, the LEP prohibition came to be inapplicable to the Project site. Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of a project approved by the Minister under Part 3A: s 75R(3). However, the regulations may preclude approval under Part 3A for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit: s 75J(3). Clause 8O(1)(b) of the Environment Planning and Assessment Regulation 2000 precludes approval for the carrying out of a project that is prohibited by such an instrument. Clause 8O provides: " 8O Other projects prohibited by environmental planning instruments for which project approval may not be given

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34 As regards context, in CIC Insurance Ltd v Bankstown Football Club Ltd (1995-1997) 187 CLR 384 at 408 the High Court held (citations omitted): "Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular… if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent." 35 Part 33 of Schedule 3 to the Major Projects SEPP, introduced by Amendment No 33, is a planning instrument controlling the use of the Project site. One of the expressed aims of that amendment is to establish appropriate zoning and other development controls for the Project: see [21] above. It divides the site into two zones, identifies the objectives of the zones, provides for development that is permissible or prohibited within the zones, and provides for development standards. Before Amendment No 33 was gazetted, the Project had become a project to which Part 3A of the EPA Act applied: see [16] above. Although Part 33 Schedule 3 is found in a major project SEPP that invokes Part 3A of the EPA Act, it contains provisions that are applicable to a development application under Part 4 of the EPA Act to the extent that the development is not a project to which Part 3A applies: cl 6(2) of Part 33. That is because it recognises that not all future development that might be proposed for the site will be a project to which Part 3A applies. Thus, cl 3 of Part 33 provides: "The consent authority for development on land in the Southern Highlands Regional Shooting Complex site, other than development that is a project to which Part 3A of the Act applies, is the Council." 36 By virtue of cl 6(2) of Part 33, cll 8, 9 and 10 are inapplicable to a Part 3A project. Consequently, the Minister is not obliged to have regard to the zone development objectives in cll 9 and 10 when giving a Part 3A development approval. In contrast, the council, as the Part 4 consent authority, is bound by cl 8 to have regard to those objectives when determining a Part 4 application.

[46]

The range danger areas were prepared in accordance with the NSW Police Range Users Guide to capture stray bullets, which are wholly contained within the subject site. A condition will be recommended requiring approval from the NSW Firearms registry for the design of the range danger areas." 50 The Minister's approval of 26 February 2009 included the following conditions: " D5 Fencing and Warning Signs All fencing and warning signage around the site, and closure of any bushwalking tracks within the range danger areas, is to be in place prior to the commencement of the use. … E2 Range Danger Areas No works, other than environmental protection works, shall be undertaken within the range danger areas as approved under this consent." 51 Condition D5 appears to have been responsive to a submission on behalf of the proponent prior to the Minister's approval that while bushwalking tracks were generally outside the range danger templates, bushwalking tracks that went inside the area of the templates would be fenced off, with signage provided around the entire boundary of the site. Addressing those submissions in his report, the Director-General recommended a further condition that signage be placed near established bushwalking tracks and supported the fencing off of bushwalking tracks within the range danger templates. 52 In planning law a use must be for a purpose, the purpose being the end which the land is seen to serve: Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400 at [27] (Preston CJ). Characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 (CA) at 310. It must also be done in a common sense and practical way: Chamwell at [45]. 53 When there is a land use ancillary to a dominant use, the ancillary use is to be classified according to the purpose of the dominant use: Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 (CA) at 161; cited with approval in Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211 at 216-217. In Foodbarn, Glass JA (Samuels and Hutley JJA agreeing) held that where a part of a site is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. His Honour considered that the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. The question of whether use for a particular purpose is subservient or incidental to another purpose, or whether it constitutes an independent use, is one of fact and degree: Lizzio at 216-217; Peters v Manly Municipal Council [2007] NSWCA 343 at [21].

[50]

57 The applicant seeks to fortify its case by reference to the passive use decision in Newcastle City Council v Royal Newcastle Hospital (1956-1957) 96 CLR 493. The statutory provision at issue in that case created an exemption from rating under the Local Government Act in respect of land that belonged to a public hospital and was "used or occupied by the hospital for the purposes thereof". The High Court held by a 3-2 majority that land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings was "used or occupied by the hospital for the purposes thereof" and accordingly fell within the rating exemption. Kitto J, in dissent, said at 510: "It is surely undeniable that a bare holding of land is neither a use nor an occupation of it, and it makes no difference that the reasons which lead the owner to retain the land unused and unoccupied are logically connected with the pursuit of purposes which he is serving by means of a use or occupation of other land." 58 As Taylor J, in the majority, emphasised, the meaning of the word "used" in a particular case will depend to a great extent upon the context in which it is used (at 515). The statutory context in the present case is distinguishable from that in the Newcastle case. Here the reference to "use" occurs in the definition of "development" in circumstances where penalties can apply for carrying out development without consent, or for carrying out impermissible development. In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 at 648 Sheller JA (Priestley and Handley JJA agreeing) said: "It would be curious if a hospital which acquired adjoining land as a buffer to obtain 'the resultant benefits that are derived from the presence of plenty of fresh air and the avoidance of overcrowding' ( Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 at 499), required development consent, even though it proposed to do nothing whatever to the land, which remained vacant, and, if that consent were refused, would be in breach of s 76." Handley JA added at 644: "In my opinion the prohibition on the carrying out of development in s 76(2) by the use of land can only be contravened by an active use and has no application where the use is entirely passive." 59 In my opinion, the catching of bullets in the range danger area in Zone E2 is an active use, not a passive use. That use, in my view, is ancillary to the dominant purpose of a shooting range. The raison d'etre for the existence of the range danger area is the shooting range. A shooting range is not a permissible use on the E2 land. Therefore, under cl 11 the catching of bullets on the range danger area is prohibited on the E2 land. The exclusion of the public and the proposed fencing and signage are for the same purpose and are also prohibited. Even if, as the applicant suggests, the proposed use were viewed as for the purpose of catching bullets, it would still be an active and impermissible use.

[72]

A panel may be composed of independent technical experts , which is an expert panel, or a panel of government agency officers. The panel may hold hearings to assist in clarifying issues with stakeholders and to ensure that community views are appropriately considered. The panel is advisory and reports to the Minister with its findings, which must be taken into consideration by the director-general when preparing the assessment report and recommendations for the Minister." (emphasis added) 89 That speech unambiguously asserted that experts means technical experts to resolve technical issues whose role was to strengthen the scientific basis for decision-making. 90 The respondents submit that the suggestion that only technical experts may be appointed to a panel of experts finds no support in the statute, and it is therefore impermissible to read in such a limitation from the second reading speech. They refer to the joint judgment in Re Bolton Ex parte Beane (1987) 162 CLR 514 at 517-518: "Furthermore, given that s 19 is ambiguous, consideration may be given in ascertaining the meaning of the provision to the second reading speech of the Minister when introducing the Bill for the Act into the House of Representatives in 1963: Acts Interpretation Act 1901 (Cth), as amended, s 15AB. That speech quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."

[83]

[34] Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, as Collex submitted, further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker. But that is not what s 35(3) involves. It stipulates in direct terms a precondition which obliges, without certain concurrences, refusal of a grant of consent." 96 In Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707 the Court of Appeal held that the characterisation of the use nominated in a development application as permissible with consent under an environmental planning instrument for the purposes of the EPA Act, Part 4, is a jurisdictional fact which the Land and Environment Court must determine for itself on the evidence before it. 97 In Dowe v Commissioner of the New South Wales Crime Commission [2007] NSWCA 296 a jurisdictional fact issue was perceived by the Court of Appeal to arise under the Law Enforcement (Controlled Operations) Act 1997, which provided: "6(1) After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 5(3), the chief executive officer: (a) may authorise a law enforcement officer for the law enforcement agency concerned to conduct the operation … 7(1) An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation: (a) inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged, or (b) engaging in conduct that is likely to seriously endanger the health or safety of that or any other participant …" 98 The Court of Appeal by majority held that the question whether conduct is likely to seriously endanger health or safety was not an objective jurisdictional fact which must be determined on the basis of evidence adduced before a court, but was a subjective matter for final determination by the chief executive officer: at [32] - [33] per Spigelman CJ (Handley AJA agreeing, Basten JA dissenting). The majority regarded the pre-condition in s 7(1)(b) as "an emphatic instruction to the decision-maker" which did not amount to a jurisdictional fact.

[88]

[47] If it be established upon a 'collateral' attack which is decided in a ruling at trial under s 138 of the Evidence Act , or other form of 'collateral' attack or (if the proceeding be appropriate) upon judicial review, that, for example, the authority in question was in relation to a proposed operation involving any participant engaging in conduct that was likely to seriously endanger the health or safety of that or any other participant or any other person, then the grant of the authority was beyond power. No question of abuse of discretion or unreasonable decision making arises. The question is answered at an earlier stage of legal analysis." 100 A statute may require a decision-maker to make a decision without making the exercise of the power contingent upon a pre-existing, objectively determined fact: eg Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3, 166 FCR 54 at [32]. 101 In Barrick Australia Ltd v Williams [2009] NSWCA 275, 168 LGERA 43 the Court of Appeal considered s 75W of the EPA Act, which provided that a proponent may request the Minister for Planning to modify the Minister's approval of a project under Part 3A of the EPA Act and that the Minister may modify the approval (with or without conditions) or disapprove of the modification. If the request was for a "modification" within s 75W, the rigorous environmental assessment and ministerial approval regime relating to approval of a project in ss 75F to 75J did not apply. Notwithstanding the absence of reference to the satisfaction or opinion of the Minister in s 75W, a majority of the Court of Appeal (Basten JA, McColl JA agreeing) held that s 75W implicitly obliged the Minister to be satisfied that a request is for a "modification" within the meaning of s 75W; therefore the question whether the request was for a "modification" within the scope of s 75W was a matter for the Minister to assess and not the Court; and, consequently, judicial review of the request was confined to the higher hurdle of establishing that the Minister's view " was not reasonably open on the facts" (a task not undertaken by the applicant): at [35] - [36], [38]. The absence of precision in relation to what might constitute a "modification" of an approval formed part of the majority's reasoning for considering that the legislature did not intend that it was a jurisdictional fact: at [53]. The third member of the Court of Appeal (Sackville J) concurred in the result but by a different route for his Honour considered that the making of a request that was limited to seeking a modification of approval was not an essential precondition for the exercise of the Minister's power. The Court of Appeal left open the meaning of "modification of approval" in s 75W and the question whether any approval by the Minister must comply with objective standards in order to be lawful or whether it was sufficient for the Minister to be satisfied on certain matters (and if so what matters).

[89]

102 In Dates v Roads and Traffic Authority (NSW) [2009] NSWLEC 82, 167 LGERA 82 at [11] - [12] (decided before Barrick), I endeavoured to summarise propositions concerning the concept of jurisdictional fact that the authorities supported. I would expand that summary a little as follows: (a) the expression 'jurisdictional fact' generally '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': Gedeon at [43], Enfield at [28]; (b) parliament can make any fact a jurisdictional fact by an intention that it must exist in fact (objectivity) and that its absence or presence will invalidate action under the statute (essentiality): Timbarra at [37], Dowe at [30]; (c) the normal rules of statutory construction apply when determining whether a factual reference is a jurisdictional fact: Timbarra at [39]; (d) 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 a court cannot itself determine the existence or non-existence of the fact, although (if it is in issue) the court will inquire, for example, as to whether the decision was manifestly unreasonable in the Wednesbury sense: Timbarra at [41]; (e) if the factual reference is preliminary to the exercise of statutory power, it is likely to be a jurisdictional fact: Timbarra at [44]. There is a distinction between a fact that is an essential preliminary (ie legally antecedent) to the decision-making process and a fact to be adjudicated upon in the course of the decision-making process: Timbarra at [46]. (f) the existence of a jurisdictional fact is often signalled by expressions such as 'where X exists' or 'when X exists' or 'if X exists', then a person is empowered or obliged to act or refrain from action: Anvil Hill at [21]; (g) where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker - for example, 'opinion', 'belief', 'satisfaction' - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that the mental state is a jurisdictional fact: Timbarra at [42]; Enfield at [34]; Woolworths at [13], [25]; Anvil Hill at [21]. Such a reference to a mental state may be implied: Barrick . A jurisdictional fact includes the mental state of a decision-maker as to the existence of X where the statute mandates that that mental state enlivens the exercise of the statutory power. In such a case, judicial review by a court is limited to determining (a) whether that mental state existed and does not extend to determining whether X existed or (b) whether that mental state was reasonably open on the facts in the Wednesbury sense ie manifestly unreasonable: Timbarra at [41] - [42]; Barrick at [35] - [36], [38]; (h) the fact that a judgment is required on a matter of potentially significant disputation suggests that it is less likely to be intended to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ: Timbarra at [89]; (i) the scope and purpose of the legislative scheme may be an indicator of whether or not a factual reference is a jurisdictional fact: Woolworths at [30]; (j) a jurisdictional fact may be suggested by a prohibition of conduct unless a specified fact exists: Enfield at [34], Woolworths at [44]; (k) the location of a factual reference in a statutory formulation concerned with the requirements of an application is a significant factor suggesting that the factual reference is jurisdictional: Timbarra at [51]"; (l) inconvenience arising from a jurisdictional fact conclusion is relevant to determining the legislative intention: Timbarra at [91]. 103 In summary, the respondents' submissions on jurisdictional fact are as follows. There is no limitation on the persons from whom the Minister may seek assistance by appointing them to a panel of experts save for independence (they are not to be officers of the Department or other public authorities having regulatory functions in connection with the project: s 75G(2)). In contrast to steps mandated by Part 3A in considering an approval application (including a report by the Director-General: s 75I), it was entirely a matter for the Minister whether she constitutes a panel of experts, what aspects were to be referred to the panel, and whether she placed any weight on the panel's report. On the proper construction of the statute, the breadth of the statutory description "panel of experts" and the absence of legislative criteria for selection (apart from disqualifying criteria) indicate a legislative intention to leave the composition of a panel of experts to the Minister. That is confirmed by the second reading speech when Part 3A was introduced in which it was said that the Minister "will specify the make-up of the panel and the scope of the matters it is to investigate". A variety of skills and experience may be required on a panel of experts including non-technical ones. The context of s 75G is Part 3A, which was introduced for the special purpose indicated by its title, "Major Infrastructure and Other Projects". The scheme involves Ministerial control over access to Part 3A; Ministerial control over and accountability for Part 3A approvals; and provides a unified scheme for assessing major infrastructure and development of significance to the State. There is no warrant for importing a requirement that the panel members must be technical experts nor for importing the test of expert witnesses. Section 75G does not say that each person appointed to a panel of experts must be an expert. A conclusion of jurisdictional fact would add a layer of complexity to the Part 3A process, contrary to the legislative intention to streamline that process. Inconvenience arising from a jurisdictional fact conclusion is relevant to determining the parliamentary intention: Timbarra at [91]. The integrity of the process is sufficiently maintained by judicial review of the reasonableness of the Minister's decision in the Wednesbury sense.

[91]

and at [93] (omitting citations): "…In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'". 105 The applicant submits that as the panel was not properly constituted, its report was invalid and that any subsequent administrative action relying upon the report, such as the Minister's approval, must also be invalid. The applicant submits that a number of factors confirm the legislative intention of invalidity if a member of the panel is not an expert: (a) the Minister had very few mandatory relevant considerations in making her determination but consideration of the Director-General's report, which contained a copy of the panel report, in addition to a detailed consideration of its content, was one of them; (b) the panel's public hearing process under s 75G(4) was arguably the primary form of public consultation envisaged by the legislature; (c) the right to a merits appeal by an objector and a proponent is lost if the project has been the subject of a report of a panel of experts under s 75G: ss 75K(1)(c), 75L(1)(c); and (d) absent statutory amelioration, a decision by a collegiate body, one member of which is disqualified for bias, is liable to be set aside (I W v City of Perth (1997) 191 CLR 1 at 50 per Gummow J) an approach which informs the exercise of discretion to set aside a decision produced as a result of consideration of a report of an invalidly constituted multi-member body. 106 The respondents submit that the following factors demonstrate that the function performed by a panel of experts under s 75G, when considered in the context of the broader scheme of Part 3A, is not indicative of a legislative intention to invalidate an approval if one member of the panel is not an "expert": (a) the power s 75G confers on the Minister to create a panel is discretionary; (b) the purpose of the panel is to provide further assistance to the Minister beyond that which is mandated by statue, in respect of those aspects of a Part 3A project that are referred to it; (c) recommendations made by a s 75G panel are not binding. Neither the Director-General, nor the Minister, is required to accept the recommendations, the panel's functions were purely advisory; (d) in deciding whether to approve the project under s 75J, the Minister has the benefit of the Director-General's analysis of the panel's report, in addition to the Director-General's recommendations in relation to the project more generally; (e) although the Minister is required to consider the Director-General's report and any accompanying reports, the ultimate decision as to whether to approve a project, with or without conditions, is for the Minister; (f) even if there was a breach of s 75G in the constitution of the panel, there was nonetheless substantial compliance with the overall process envisioned by the section because the panel contained two experts with technical skill and experience relevant to matters that the Minister referred and there is no attack on the conduct of the Panel's review, the content of its report or on the Director-General's comments upon it; (g) section 75G is not the source of the Minister's power to approve the project; (h) the public inconvenience which would follow a finding of invalidity would be disproportionate as the steps already taken, at public expense, as well as at the expense of those who participated in the public consultation process conducted by the panel would have to be re-done even though there is no suggestion by the applicant that the panel reached any wrong result or applied any wrong process. 107 The respondents also submit that s 75X(5) supports their submissions to the extent of indicating that Parliament has considered the issue of invalidity and has omitted "consideration by a properly constituted panel of experts" from the list. I do not accept that s 75X(5) assists the respondents. It provides: "The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project." 108 Section 75X is an expression of Parliament's intention that the only provision breach of which will necessarily lead to invalidity is s 75H(3). The consequence of breach of all other provisions is left at large, to be determined in accordance with the principles laid down in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355: see Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 at [29] - [32].

[96]

117 The respondents submit that the Court should exercise its discretion to refuse relief on the panel of experts ground because of the applicant's delay in seeking relief on that ground. The respondents' complaint is that the composition of the panel of experts was a matter in respect of which objection should have been taken when the panel was conducting its review; but at no stage prior to these proceedings did the applicant do so notwithstanding that it made extensive submissions in relation to the Project generally including at the public hearing before the panel. 118 On the other hand, the applicant moved promptly for relief after the approval was granted, and the carrying out of the project pursuant to the approval has not commenced. 119 Delay is a discretionary factor. In SAAP v Minister for Immigration [2005] HCA 24, 228 CLR 294 at [80] (in the context of the discretion to issue constitutional writs) McHugh J said (omitting citations) that discretionary relief may be refused: "if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome." In Timbarra at [93] Spigelman CJ held: "However, remedies on judicial review are discretionary and may be refused, depending on the circumstances, including delay. The further a decision-making process has gone, in reliance on the validity of a decision not to require a species impact statement, the more difficult it will be for an applicant to obtain relief". In Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57, 204 CLR 82 at [55] - [56] Gaudron and Gummow JJ emphasised that the Court should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws that govern their exercise, but that a circumstance which may attract an exercise of discretion adverse to an applicant is if the applicant has been guilty of "unwarrantable delay" (quoting from R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Pty Ltd (1949) 78 CLR 389 at 400). In some circumstances an applicant who seeks relief before an approval is granted may run the risk that they will be held to have moved prematurely, as is illustrated by the decision in Barrick: see [101] above.

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