But the possibility of alteration does not stop at s38. Section 39(1)(b) expressly recognises that the Minister may make alterations to the draft before recommending its making to the Governor or he may decide not to proceed at all with making the SEPP. Furthermore, it is implicit in s39(2) that the Minister may make alterations to the draft following upon his consideration of submissions made in response to the public exhibition of the draft. These matters show that the process is a developmental process. Changes may take place, but, in the final stage, they must result in a SEPP which deals with a matter which is of significance for environmental planning for the State (s 39(3)), and which must describe that part of the State to which it applies (s 39(5))."
38 I agree that the test applied is that the Court must be able to conclude that, if a draft SEPP has been altered, it must still be identifiable as the original draft SEPP submitted to the Minister, in order to comply with s39(1)(b) of EPA. Thus in terms of s39(1)(b), the question is whether after the alterations, the resultant gazetted Amendment is still in substance "that draft State environmental policy", albeit "with such alterations as the Minister thinks fit". Those concluding wide words of s39(1)(b) amplified as they are by s38, are contrasted with the more qualified power of Ministerial alteration in s70(1)(a)(ii). It refers to a power of the Minister to "make a local environmental plan … with such alterations as the Minister thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning". "Alteration" is itself a word of potentially wider ambit than "modify" where as Provincial Insurance recognised, one is dealing with matters of degree.
39 I turn now to the specific differences which were pressed by the appellant on appeal. They were originally in three categories noted in [18] above, but correctly, only the third category appears now to be pressed. The three categories of alterations originally identified by the appellant, and using the summary description employed by the respondent in its written submissions, were as follows:
(a) the direct amendment of the LEP point : in that the earlier draft SEPP introduced a schedule into SEPP 53 itself, whereas the SEPP submitted on 3 November 2003 and as then made inserted a schedule into SEPP 53 which amended the Lane Cover LEP;
(b) the different aims point: in that the earlier draft SEPP contained one set of aims, which were expressed in supposedly different terms in the SEPP as submitted on 3 November 2003 and as then made; and
(c) the design requirements point: in that the earlier draft SEPP contained certain design requirements which had did not appear in the SEPP as submitted on 3 November 2003 and as then made, because such requirements were incorporated by cross-reference to another SEPP which had been made in the interim, SEPP 55.
40 The third of these, the design requirements point, was said to involve a bright line difference, by applying what were said to be "radically different" urban design standards. These were said to have rendered the gazetted Amendment or SEPP so radically different "as to create a new thing and to destroy that upon which the 'alteration' was attempted", rendering the original draft Amendment submitted to the Minister no longer identifiable as such.
41 The first difference relied upon by the appellant was found in the contrast between clause 32 of the draft Amendment compared to clause 30 of the gazetted Amendment. It was submitted that the former amounted to a jurisdictional fact or condition precedent for the granting of consent, in terms of satisfaction of the urban standards then laid down, whilst the latter consisted merely in matters "to be taken into consideration".
42 However, clause 32 of the draft Amendment is expressed in terms that hardly comport with such distinction:
"Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles: …" [emphasis added]
43 Indeed clause 30 of the gazetted Amendment in subclause (2) similarly provides:
"In determining a development application for consent to carry out residential flat development, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration) …"
44 Whether either presage jurisdictional fact need not be decided. Each do share one characteristic pointing, though not invariably, against jurisdictional fact of the kind identified by Spigelman CJ in Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at 64:
"[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."
45 They also share another characteristic, though in more ambivalent form, whose potential significance Timbarra again explains in the judgment of the Chief Justice:
"[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. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions."
46 The pointers against jurisdictional fact in clause 32 of the draft Amendment also include the fact that it is to be found in Part 5 where it is provided that:
"This Part requires certain design aspects to be taken into account when a consent authority considers an application for a consent for the carrying out of development to which this Part applies." [emphasis added]
47 The expression "taken into account" is essentially indistinguishable from the expression in clause 30(2) "take into consideration".
48 Clause 32 is expressed in terms of the consent authority being "satisfied" that the proposed development demonstrates that adequate regard has been given to what are described as "principles". To refer to being "satisfied" is again to invoke a subjective requirement, albeit requiring the consent authority to direct its mind to the relevant matters. To refer to "principles" one is directed to matters of generality rather than specificity.
49 Clause 30 for its part refers to "matters", so the connotation is similarly general.
50 Finally, when it comes to the particular "principles" referred to in clause 32, they are themselves internally qualified further reducing their stringency.
51 Thus each of paragraphs (a) through (h) are expressed in terms merely of "should" with the latter further qualified by the words "where possible" in subparagraphs (a)(ii), (c), (d), (e), and (g). Moreover, in subparagraph (b) the requirement is merely to "consider" the visual and acoustic privacy of neighbours in the vicinity and residents by … "ensuring acceptable noise levels in internal and living and sleeping areas of new buildings". [emphasis added]
52 Subparagraphs (f) and (h), while they do not use the expression "where possible" use instead the similar expression "where appropriate".
53 Furthermore, paragraph (c) dealing with solar access and design for climate invokes a principle that the proposed development should "involve" site planning, hardly a stringent requirement. Then for stormwater in sub-paragraph (d) the proposed sub-development invokes the principle that, where possible, it should "control and minimise the disturbance and impacts of stormwater runoff". Finally, sub-paragraph (f) when dealing with accessibility uses the broad expression "attractive" in referring to environments for pedestrians, cyclists, etc.
54 Comparing this to clause 30, I agree with the respondent's submission that there is in reality no bright line difference in terms of the stringency of the requirements or degree to which they constrain the consent authority in terms of the matters to be taken into account, when compared to clause 32.
55 Finally, it is fallacious to treat the requirement in clause 30 as allowing Council merely to pay lip service to a relevant matter. As was determined by the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181, that matter has to receive proper, genuine and real consideration.