Minister for Planning & Anor. v. Gales Holdings Pty. Limited [2006] NSWCA 212

Minister for Planning & Anor. v. Gales Holdings Pty. Limited [2006] NSWCA 212 - NSWCA 2006 case summary — Zoe

[28]

One of the classes listed in the Schedule was: An aquaculture industry if in the opinion of the consent authority, 1. the project has been identified as being of State or regional significance in a strategic plan adopted by the Director General; or 2. the project will employ more than 20 people; or 3. the project is to be located in an "environmentally sensitive area of State significance". 12 On 15 November 2004, Bay Lobster lodged an application with the Minister seeking consent for development of an aquaculture facility and associated sea water supply works on privately owned land, Crown reserves and Council public reserves. The tanks and associated structures were to be on land in rural zones, but the sea water supply works and pipes connecting them to the tanks were on land in zones other than rural and industrial zones. 13 The statement of environment effects lodged with the application asserted that the proposed development would employ more than 20 people and was affected by SEPP 62, and identified it as State significant development that would require consent of the Minister in order to proceed. 14 Before this application was dealt with by the Minister, there was a series of statutory enactments occurring in about mid-2005. 15 On 25 May 2005, State Environmental Planning Policy (State Significant Development) 2005 (SEPP(SSD)) was introduced. This SEPP replaced a number of planning instruments concerning State significant development, but not SEPP 62. 16 On 27 May 2005, there was the second reading speech for the Bill which became the Environmental Planning & Assessment Amendment (Infrastructure & Other Planning Reform) Act 2005 (the 2005 Amending Act), which introduced a new Pt.3A to the EPA Act entitled "Major Infrastructure and Other Projects" and omitted provisions relating to State significant development including s.76A(7) and (8). The Minister in this speech referred to SEPP(SSD) and the purpose of cutting red tape in the assessment of infrastructure projects. 17 By 9 June 2005, the Bill for the 2005 Amending Act had passed both Houses of Parliament. 18 On 10 June 2005, the Government Gazette published the revocation of the declaration of 3 September 1999. 19 On 16 June 2005, the 2005 Amending Act was assented to. 20 On 30 June 2005, the Minister purported to grant development consent to Bay Lobster's application. The determination document contained the following, under the heading "State Significant Development": Under Section 76A of the Environmental Planning and Assessment Act 1979, the development is classified as State Significant development by virtue of it being a development to which a declaration made by the Minister for Infrastructure and Planning relating to aquaculture development on 3 August 1999, applies. 21 On 1 August 2005, parts of the 2005 Amending Act, including Pt.3A and the repeal of s.76A(7) and (8) commenced. On the same day, an amendment to SEPP (SSD) commenced, which renamed it State Environmental Planning Policy (Major Projects), and generally replaced references to State significant development with references to projects to which Pt.3A of the EPA Act applies. 22 Transitional provisions concerning the 2005 Amending Act were inserted into Schedule 6 of the EPA Act, and relevantly included clauses 1, 87 and 89: 1 Savings and transitional regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: … Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 … (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

[30]

89 State significant development matters (1) If a development application for State significant development is pending on the commencement of Part 3A of this Act, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to this Act by Schedule 1 to the 2005 Amending Act had not been made. (2) A reference in any Act or instrument to State significant development within the meaning of this Act is taken to be a reference to a project to which Part 3A of this Act applies. 23 Further transitional provisions were contained in the Environmental Planning and Assessment (Infrastructure and Other Planning Reform) Regulation 2005, published in the Government Gazette on 29 July 2005 and commencing 1 August 2005. These included cl.8J(5): 8J(5) If a development application is made after the commencement of Part 3A of the Act in respect of any development that, immediately before the commencement of Part 3A, was declared to be State significant development by notice in force under section 76A (7) of the Act, the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made. 24 On 4 October 2005, Gales applied to the Land & Environment Court for a declaration that the purported consent of 30 June 2005 was void; and, pursuant to a concession by the Minister, a declaration to that effect was made on 7 December 2005. The Minister's concession was made for the reason that the Ministerial declaration that aquaculture is State significant development had been revoked on 10 June 2005, and accordingly the Minister did not have power to determine the development application on 30 June 2005. 25 On 7 December 2005, there was Gazettal of the Environmental Planning & Assessment Amendment (Major Projects Transitional Provisions) Regulation, expressed to commence on the date of assent to the 2005 Amending Act, that is, 16 June 2005. Schedule 1 added cl.8J(6), (7) and (8) to the Environmental Planning & Assessment Regulation 2000: (6) Clause 89 of Part 17 to Schedule 6 to the Act extends to development applications pending on the commencement of Part 3A of the Act for development that was State significant development on the commencement of the State Environmental Planning Policy (State Significant Development) 2005.

[36]

FIRST ISSUE: POSITION UNDER THE PREVIOUS REGIME 36 The development for which consent was sought in this case did not fall within par.(a), par.(c) or par.(d) of s.76A(7) of the EPA Act, and so it could be State significant development only if it fell within par.(b) of s.76A(7), this requiring satisfaction of all three sub-paragraphs (i), (ii) and (iii). 37 Satisfaction of sub-paragraphs (ii) and (iii) could be supported by the 3 September 1999 declaration, while it was in force. This declaration expressed the Minister's opinion that each of the defined classes of development was of State or regional environmental significance, and declared it to be State significant development. The development in this case would come within one of the defined classes if "in the opinion of the consent authority" one of three conditions was satisfied, the relevant one here being that "the project will employ more than 20 people". 38 One difficulty with this that was identified in argument was that the consent authority for this development application would not be the Minister unless the application was for State significant development; so that unless and until the consent authority formed the opinion that the project will employ more than 20 people, the application would not be for State significant development, and the consent authority would be the local authority and not the Minister. Of course, if the application had been made to the local authority, and it had formed the opinion that the project will employ more than 20 people, then (assuming sub-paragraph (i) of s.76A(7) was also satisfied) that opinion (if effectual) would have the result that the local authority was not the consent authority; so that this opinion would then be made ineffectual, giving rise to a contradiction. And there would still be the need for an opinion by the entity that was in truth the consent authority. 39 In my opinion, the better view is that an application for a development on a scale that would employ more than 20 people and that otherwise satisfied the requirements for State significant development should be made to the Minister; and so long as the Minister forms the opinion that the project will employ more than 20 people, then it may be taken that the Minister is the consent authority, so that this opinion is the requisite opinion. This might be considered a boot-straps exercise, but it involves no contradiction; and in my opinion it must be what was intended by the declaration. 40 The same result could also perhaps be reached on the basis that the application is for something identified as and potentially satisfying all the requirements of State significant development, for which the consent authority is the Minister; so that the Minister is "the consent authority" for the purposes of any opinion necessary in order that the development in fact satisfy all the requirements for it to be, in the result, State significant development. 41 The main focus of the primary judge's decision and the respondent's submissions was sub-paragraph (i). 42 Mr. Robertson SC for Gales submitted that the application was for a development which did not meet the site and operational requirements for that development, in that the development was not within rural and industrial zones, so that the development was prohibited. It was not possible, he submitted, to regard part of the development as permissible with consent, because the pipes and sea water intake facilities were an essential and integral part of the development. 43 In my opinion, this submission should not be accepted. While it is true that the project required both the tanks and associated structures on the one hand, and the pipes and sea water intake facilities on the other, nevertheless the application was for consent to use of land for a purpose, namely for tank-based aquaculture; and use of land in the rural zones for this purpose was permissible with consent. I see no reason for denying that, to that extent, the application was for consent to development that may be carried out with development consent, within s.76A(7)(b)(i). As pointed out by Mr. Williams SC for the Minister, this is consistent with s.80(4) and (5) of the EPA Act, which expressly provide for consent being given to part of the development for which it is sought, and consent to other parts being given at later times, and the prohibition in SEPP 62 was against the background of partial prohibition recognised in s.76A(8). 44 Plainly the application was for consent to development for an aquaculture industry project capable of satisfying the requirements of the 3 September 1999 declaration; so the development for which consent was sought was, subject to the formation of the requisite opinion and to the extent that it was on land in rural zones, State significant development within s.76A(7)(b). The other development comprised in the project, namely the pipes and sea water intake facility, is then taken to be State significant development by reason of s.76A(8)(a); and s.76A(8)(c) then has the effect that it too can be carried out with consent. Accordingly, I would decide this issue favourably to the appellants. 45 Mr. Williams also advanced an alternative submission that the whole of the proposed development was permissible with consent, because the site requirements limited to rural and industrial zones in SEPP 62 related only to the site of the tanks and associated structures, not to the pipes and sea water intake facilities which, according to cl.7 of Schedule 1 to SEPP 62, could be outside such zones. It is not necessary to consider this question.

[39]

HAD THE MINISTER FORMED AN OPINION? 51 Mr. Robertson submitted that he had. He must have formed the opinions that s.76A(7)(b)(i) was satisfied, the opinion that the project would employ more than 20 people, that the development was State significant development and that he was the consent authority, when he gave the purported consent on 30 June 2005. 52 Mr. Williams accepted that this was so, as a matter of fact; but submitted that what the words were referring to was not just an opinion as a matter of fact, but rather a valid and operative opinion, such as would make the application one for State significant development. He submitted that this was supported by the terms of cl.8J(6). 53 In my view, the "opinion" referred to in cl.8J(7)(b) comprehends those opinions that are required for a valid determination, this meaning opinions that where necessary engage with the relevant statutory and regulatory framework so as to make the application one for State significant development; one such being an opinion engaging with the terms of the declaration of 3 September 1999. In my view, that is what the words before the parenthesis refer to; so in my view it is reasonable to give the words in the parenthesis the same effect. Although the Minister did, as a matter of plain fact, form an opinion that the project would employ more than 20 people, that was not an opinion required for valid determination of the application, because in the circumstances that opinion did not engage with the relevant statutory and regulatory framework. The relevant opinion that was required, that is one engaging with relevant statutory and regulatory framework, was not formed, because of the absence of the relevant framework. Accordingly, the Minister had not formed the opinion referred to in parenthesis in cl.8J(7)(b). 54 I accept that this interpretation does somewhat strain the words used in the clause. However, it does have support from cl.8J(6), which suggests that what cl.8J(7) is dealing with is applications for development which is not State significant development because of the absence of the required opinion. Further, in my opinion it is preferable because it does enable some effect to be given to the apparent purposes of the provision, including the purpose of overcoming the mischief that had arisen from the premature revocation of 3 September 1999 declaration, without appropriate transitional provisions at that time. It is unlikely that a mere subjective and ineffectual opinion should be made a criterion for the operation of that kind of remedial provision.

[40]

DOES CLAUSE 8J(7) OVERCOME THE REVOCATION OF THE 3 SEPTEMBER 1999 DECLARATION? 55 Mr. Williams submitted that, once paragraphs (a) and (b) of cl.8J(7) were satisfied, the time of making the application was specified as the relevant time at which the development must, according to the opinion of the Minister, be State significant development; and at that time, the 3 September 1999 declaration was in force. So once the Minister formed that opinion, as he did, the Minister was the consent authority to determine the application, which he could then determine as if the amendments made by the 2005 Amending Act had not been made. 56 Mr. Robertson submitted that cl.8J(7) required the application to be determined as if the amendments made by the 2005 Amending Act had not been made, that is, as at 31 July 2005; and at that time, the 3 September 1999 declaration had been revoked. Accordingly, the development could not, at the time as at which the application was to be determined, be State significant development and the Minster was not the consent authority. This view was confirmed by the status of the regulation as a regulation based on a power to make transitional provisions consequent on the passing of the 2005 Amending Act; so that all it could do was to preserve the status quo immediately prior to the commencement of that Act. 57 In my opinion, cl.8J(7) discloses a clear intention to make the relevant date for determination whether the development in question was State significant development (and thus to determine whether the Minister was the consent authority) the date of the application; and it does not contemplate a further question as to whether the development was State significant development, to be addressed either as at the date of determination of the application or 31 July 2005. If the Minister forms the opinions required for a conclusion that the application was, at the time it was made, for State significant development, then the Minister is the consent authority; and there is no need to revisit the question as at any later date.

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Judgment (43 paragraphs)

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