Northern Beaches Council v Vigor Master Pty Ltd

Catchwords: APPEAL – appeal against Commissioner’s decision on a question of law – whether inconsistency between different statutes and statutory instrument – whether misconstruction of statutory provision for resolving inconsistency – whether misconstruction of statutory provisions supposed to be inconsistent – whether actual inconsistency between statutory provisions

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), Part 7, ss 1.5, 6.2, 6.7, 6.12, 8.4, 7.5, 7.13
Environmental Planning and Assessment Act 1979 (NSW) ss 1.7, 4.15
Land and Environment Court Act 1979 (NSW), s 56A(1)
Biodiversity Conservation Regulation 2017, cll 1.4, 14
Warringah Local Environmental Plan 2000, cll 12, 56, 58, Appendix B Narrabeen Lagoon Catchment Locality Statements - Locality B2 Oxford Falls Valley

Cases Cited: Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2
Muscat Development Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121
Parks and Playgrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231
Planners North v Ballina Shire Council (2021) 251 LGERA 309; [2021] NSWLEC 120
Save Sydney’s Koalas (South West) Inc v Lendlease Communities (Figtree Hill) Pty Limited (No 2) [2021] NSWLEC 102
Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106
Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2

Category: Principal judgment

Parties: Northern Beaches Council (Appellant)
Vigor Master Pty Ltd (Respondent)

Representation: Counsel:
R Lancaster SC (Appellant)
T Robertson SC (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Appellant)

File Number(s): 2025/316307

Publication restriction: NIL

JUDGMENT

Nature of appeal and outcome

1. Northern Beaches Council (Council) appeals against the decision of the presiding Commissioner in the court below, who upheld an appeal by Vigor Master Pty Ltd (Vigor) and granted development consent to a seniors living development at Oxford Falls. The appeal under s 56A(1) of the Land and Environment Court Act 1979 (NSW) is limited to errors on questions of law.

2. The Council raised six grounds of appeal in the summons commencing the appeal. The grounds all allege the misconstruction of the provisions of the Biodiversity Conservation Act 2016 (NSW) (BC Act) (particularly, s 7.5 and s 7.13), the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (particularly, s 1.7 and s 4.15) and Warringah Local Environmental Plan 2000 (WLEP) (particularly, cl 12, cl 56 and cl 58 and the relevant Locality Statement for Locality B2 Oxford Falls Valley). The Commissioner found that the provisions of the BC Act, by the operation of s 7.5(1), “oust the operation of s 4.15 EPA Act and consequently the WLEP 2000 provisions related to the same subject matter”: at [68]. In particular, the Commissioner found that “the assessment of biodiversity impacts under Part 7 of the BC Act prevails over inconsistent provisions in the EPA Act and any instrument made under the Act: s 7.5(1) BC Act. Noting that the WLEP 2000 is such an instrument.”: at [52]. The Council contends such findings involve misconstruction of the relevant statutory provisions.

3. The Council contends that the Commissioner’s misconstruction of the statutory provisions caused her consideration and application of the provisions of WLEP in the determination of the development application to miscarry. The Commissioner thereby failed to take into consideration, as required by s 4.15(1) of the EPA Act, the matters of relevance to the development the subject of the development application. The misconstruction of the relevant statutory provisions was material and vitiates the Commissioner’s decision to grant development consent.

4. I uphold the Council’s appeal. The Commissioner did misconstrue the relevant statutory provisions of the BC Act, EPA Act and WLEP. This misconstruction was material and vitiated the Commissioner’s decision to grant development consent to the seniors living development. The decision should be set aside and the matter remitted to the Commissioner to be redetermined according to law. A case for an exclusionary remitter has not been made out.

The proposed development

5. The proposed seniors living development is on a bushland site, classified as bushfire-prone, which slopes steeply from the western boundary toward the middle of the site, including a series of rock shelves, before flattening out toward the eastern boundary: at [6], [8]. The seniors living development is to be constructed on the flat area of the site. Parts of the site will need to be cleared for the construction of the seniors living development as well as for an Asset Protection Zone (APZ) around the built form: at [2]. Remnant bushland outside the construction areas and the APZ will be retained and appropriately managed as a natural bushland setting: at [5](3).

The relevant statutory provisions

6. Section 4.15(1) of the EPA Act requires a consent authority, in determining a development application, to take into consideration, amongst other matters, the provisions of any environmental planning instrument that apply to the land to which the development application relates (paragraph (a)) and “the likely impacts of that development, including environmental impacts on both the natural and built environments” (paragraph (b)).

7. One of the applicable environmental planning instruments is WLEP. Amongst the provisions of WLEP that apply to the land to which the development application relates are cll 12, 56 and 58. Clause 12 specifies the matters that are to be considered before development consent is granted. Clause 12(1) provides that: “Before granting consent for development the consent authority must be satisfied that the development is consistent with: (a) any relevant general principles of development control in Part 4…”.

8. The relevant general principles of development control in Part 4 include the principles in cl 56 and cl 58. Clause 56 provides:

“Retaining distinctive environmental features on sites

Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land.

In particular, development is to be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses.”

9. Clause 58 provides:

“Protection of existing flora

Development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species.”

10. Clause 12(3) specifies other matters to be considered before consent is granted, depending on the classification of the development as Category One, Two or Three. Clause 14 provides that, for the purposes of cl 12, development of land within a locality is classified by the relevant Locality Statement for the site as being in Category One, Two or Three. The relevant Locality Statement is that for Locality B2 Oxford Falls Valley, in Appendix B of the WLEP. This Locality Statement classifies development for the purposes of older people or people with disabilities (now referred to as seniors living) as Category Two development. Clause 12(3) relevantly provides:

“In addition, before granting consent for development classified as—

…

(b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement,

but nothing in a description of desired future character creates a prohibition on the carrying out of development.”

11. The Locality Statement for Locality B2 Oxford Falls Valley describes the desired future character as:

“The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows.

Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway.

The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.

A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape.

Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained.”

12. Part 7 of the BC Act concerns biodiversity assessment and approvals under the EPA Act. Section 7.5(1) provides that: “This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act)”.

13. The only provision in Part 7 of the BC Act that the parties identified as potentially giving rise to inconsistency with the relevant provisions of the EPA Act or WLEP is s 7.13. Section 7.13 relevantly provides:

“(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 that is required under Division 2 to be accompanied by a biodiversity development assessment report, except—

(a) an application for development consent for State significant development, or

(b) an application for a complying development certificate.

(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.

…

(6) This section does not operate to limit the matters that a consent authority may take into consideration—

(a) in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts, or

(b) in deciding whether to reduce or increase the number of biodiversity credits to be retired.”

14. The term “biodiversity values” is defined in s 1.5(2) of the BC Act:

“For the purposes of this Act, biodiversity values are the following biodiversity values—

(a) vegetation integrity—being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state,

(b) habitat suitability—being the degree to which the habitat needs of threatened species are present at a particular site,

(c) biodiversity values, or biodiversity-related values, prescribed by the regulations.”

15. Pursuant to s 1.5(2)(c) of the BC Act, additional biodiversity values are prescribed in s 1.4 of the Biodiversity Conservation Regulation 2017:

“Additional biodiversity values (section 1.5 of the Act)

The following are prescribed as additional biodiversity values for the purposes of the Act—

(a) threatened species abundance—being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site,

(b) vegetation abundance—being the occurrence and abundance of vegetation at a particular site,

(c) habitat connectivity—being the degree to which a particular site connects different areas of habitat of threatened species to facilitate the movement of those species across their range,

(d) threatened species movement—being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle,

(e) flight path integrity—being the degree to which the flight paths of protected animals over a particular site are free from interference,

(f) water sustainability—being the degree to which water quality, water bodies and hydrological processes sustain threatened species and threatened ecological communities at a particular site.”

16. This potential overlap in a consent authority’s consideration of the likely impact of the proposed development on biodiversity values under the BC Act and the EPA Act is also addressed in s 1.7 of the EPA Act, which provides:

“This Act has effect subject to the provisions of Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994 that relate to the operation of this Act in connection with the terrestrial and aquatic environment.”

The Commissioner’s finding of inconsistency between the relevant statutory provisions

17. Vigor argued and the Commissioner accepted that “there is inconsistency between the provisions at issue, as asserted”: at [51]. The inconsistent provisions, the Commissioner found, relate to the assessment of biodiversity impacts under the BC Act and the EPA Act. The Commissioner stated:

“Furthermore, that the assessment of biodiversity impacts under Pt 7 of the BC Act prevails over inconsistent provisions in the EPA Act, and any instrument made under the Act: s 7.5(1) BC Act.” at [52].

18. The Commissioner summarised the biodiversity offsets scheme under Part 6 of the BC Act for the assessment of likely impacts of development on biodiversity values: at [54]-[56]. The Commissioner found that the provisions of WLEP contradict that scheme:

“The applicant submits, and I accept that requiring improvements in biodiversity, as the WLEP 2000 provisions seek to do, contradicts the scheme and erects a higher bar to an approval than the standard adopted in the BAM by which biodiversity impacts of any development must be assessed. The overriding effect of s 7.5 of the BC Act depends on “contrariety”. Following the reasoning of the Court when dealing with s 8.4 of the BC Act and the State Environmental Planning Policy (Koala Habitation Protection) 2021 in Save Sydney’s Koala’s (Southwest) Inc v Lendlease Communities (Figtree Hill) Pty Ltd (No 2) [2021] NSWLEC 102 (Save Sydney’s Koalas), I find that the WLEP 2000 clauses at issue in this case have no operative effect for biodiversity as a mandatory consideration and that the assessment under s 4.15 of the EPA Act is confined to “likely impacts of the development” – with the assessment of the biodiversity impacts is to be carried out by the preparation of the BDAR s 7.7(1) BC Act”: at [57].

19. Accordingly, the Commissioner found that, by operation of s 7.5(1) of the BC Act, Part 7 of the BC Act prevails over the inconsistent provisions of WLEP. But the Commissioner went even further to find that s 7.5(1) of the BC Act ousts the operation of s 4.15 of the EPA Act. This further finding was based on a decision of Duggan J in a judicial review case involving a different statutory provision, s 8.4 of the BC Act, in Save Sydney’s Koalas (South West) Inc v Lendlease Communities (Figtree Hill) Pty Limited (No 2) [2021] NSWLEC 102 (Save Sydney’s Koalas). Section 8.4(2) of the BC Act expressly provides that “[a]n assessment of the likely impact on biodiversity of development on biodiversity certified land is not required for the purposes of Part 4” of the EPA Act, while s 8.4(3) of the BC Act provides that:

“A consent authority, when determining a development application in relation to development on biodiversity certified land under Part 4 of the Environmental Planning and Assessment Act 1979, is not required to take into consideration the likely impact on biodiversity of the development carried out on that land.”

20. Those provisions refer to the impact on “biodiversity”, not “biodiversity values”, which is the term used in s 7.13(2) and (6) of the BC Act. The term “biodiversity” is defined in s 1.5(1) of the BC Act:

“(1) For the purposes of this Act, biodiversity is the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems.”

21. The development challenged in the Save Sydney’s Koalas case was on biodiversity certified land. Section 8.4(6) of the BC Act then provided:

“This section has effect despite anything to the contrary in the Environmental Planning and Assessment Act 1979 or Part 7 of this Act.”

22. The seniors living development proposed by Vigor is not on biodiversity certified land, such that s 8.4 of the BC Act has no application. Nevertheless, the Commissioner applied the decision of Duggan J in Save Sydney’s Koalas:

“Ultimately, I accept that the words under review in the BC Act are not distinctly different to those in s 8.4(6) BC Act which intended to oust the operation of s 4.15 EPA Act and consequently the WLEP 2000 provisions related to the same subject matter: see Save Sydney’s Koalas at [137]. The same outcome follows in this case when considering the WLEP 2000 provisions including the DFC provision and the BC Act”: at [68].

The Council’s argument that the Commissioner misconstrued the relevant statutory provisions

23. The Council’s grounds of appeal contend that the Commissioner erred on a question of law in interpreting and applying the relevant statutory provisions of the BC Act, EPA Act and WLEP. The Council groups the six grounds of appeal in three categories:

(a) the proper approach to determining inconsistency under s 7.5(1) of the BC Act between Part 7 of the BC Act and the EPA Act and WLEP (grounds 2 and 5); (b) the proper interpretation of s 7.13 of the BC Act (grounds 1, 4 and 6(b)); and (c) the Court’s findings as to inconsistency between Part 7 of the BC Act and WLEP (grounds 3 and 6(a)).

24. The first group of grounds of appeal concerns the proper approach to determining inconsistency under s 7.5(1) of the BC Act. The Council submits that the Commissioner asked the wrong question and applied the wrong test. Section 7.5(1) of the BC Act sets the question to be asked and the test to be applied, as Part 7 of the BC Act “prevails to the extent of any inconsistency” between Part 7 and the EPA Act and any instrument under that Act, including WLEP. The Council submits that the Commissioner did not ask this question or apply this test in three ways.

25. First, the Commissioner used the wrong comparators. In [52], the Commissioner stated that “the assessment of biodiversity impacts under Pt 7 of the BC Act prevails over inconsistent provisions in the EPA Act, and any instrument made under the Act”, including WLEP. That formulation of the test differs from s 7.5(1) by directing the inquiry as to inconsistency to “the assessment of biodiversity impacts” under Pt 7 of the BC Act and the provisions of the EPA Act and WLEP, rather than simply to Part 7 of the BC Act and the EPA Act and WLEP. The comparison demanded by s 7.5(1) is between the provisions of Part 7 of the BC Act and the provisions of the EPA Act and an instrument under that Act such as WLEP. This requires identification of the respective provisions that might potentially be inconsistent and a determination of whether these identified provisions are, on a proper interpretation, in fact inconsistent.

26. Second, contrary to what the Commissioner said in [52], s 7.5(1) of the BC Act does not state that Part 7 of the BC Act “prevails over inconsistent provisions of the EPA Act, and any instrument under that Act”. The Commissioner’s statement presupposes the existence of inconsistent provisions, when that is the question to be determined before s 7.5(1) will operate to cause the provisions of Part 7 of the BC Act to prevail over the provisions of the EPA Act or any instrument under that Act. Section 7.5(1) of the BC Act only applies if there is inconsistency and says nothing about whether there is an inconsistency. It is necessary to have recourse to s 7.5(1) of the BC Act only if any apparent inconsistency between the provisions of Part 7 of the BC Act and the provisions of the EPA Act and WLEP cannot otherwise be reconciled as a matter of ordinary statutory interpretation.

27. Third, the Commissioner’s acceptance of Vigor’s argument as to the interpretation and application of Part 7 of the BC Act involved error on a question of law. In [50], the Commissioner summarised Vigor’s argument as being that:

“inconsistent provisions that impose a standard, method or outcome in biodiversity assessment that departs from the biodiversity offsets scheme must be ignored.”

28. The Commissioner adopted this argument in [53]:

“As the applicant submits, the inconsistent provisions here are those that impose a standard method or outcome in biodiversity assessment that departs from the biodiversity offset[s] scheme, which is the intended leading provision.”

29. The Council submits that this approach is not warranted by the terms of s 7.5(1), which refers generally to inconsistency between Part 7 of the BC Act and the EPA Act and any instrument under that Act and not to the potential imposition under the EPA Act or instrument under that Act of a standard, method or outcome in biodiversity assessment, which differs from or adds to the specific assessment required under the biodiversity offsets scheme in the BC Act. An instrument made under the EPA Act, such as WLEP, may impose a requirement for the assessment of the impact of a development on biodiversity values that differs from or adds to the requirements of the biodiversity offset scheme, but such a provision is not thereby necessarily inconsistent with Part 7 of the BC Act. Inconsistency will depend on the precise terms of the provisions of the instrument.

30. The second group of grounds of appeal concern the proper interpretation of s 7.13 of the BC Act. The Council contends that the Commissioner misconstrued s 7.13(2) of the BC Act. On a proper construction, s 7.13(2) does two things.

31. The first sentence sets a relevant consideration. It requires the consent authority, when determining a development application under the EPA Act, to take into consideration under that Act (under s 4.15(1)(b)) the matter of the likely impact of the proposed development on biodiversity values, but to do so by considering how that likely impact is assessed in the biodiversity development assessment report (BDAR) that relates to the development application. Part 6 of the BC Act requires the preparation of a BDAR in certain circumstances and prescribes the biodiversity assessment method that the BDAR must use to assess the likely impact of a proposed development on biodiversity values. The first sentence of s 7.13(2) of the BC Act ensures that the BDAR’s assessment of the likely impact of the proposed development on biodiversity values is taken into consideration in determining the development application for the proposed development. This gives effect to one of the key elements of the biodiversity offsets scheme (in s 6.2(d) of the BC Act).

32. The second sentence of s 7.13(2) allows for a permissible consideration. It provides that: “The consent authority may (but is not required to) further consider under that Act [the EPA Act] the likely impact of the proposed development on biodiversity values.” Under s 4.15(1)(b) of the EPA Act, a consent authority is required, in determining a development application, to take into consideration the impact of the proposed development on the natural environment, which may include the impact on “biodiversity values” as that term is defined in s 1.5(2) of the BC Act and cl 1.4 of the Biodiversity Conservation Regulation 2017. The consideration of the impact of the development on the natural environment is, however, wider than just a consideration of the impact of the development on biodiversity values.

33. On one view, the second sentence of s 7.13(2) of the BC Act does not add to the existing requirement in s 4.15(1)(b) of the EPA Act to consider the impact of a development on biodiversity values, amongst other aspects of the natural environment. But its inclusion in s 7.13(2) may be for the avoidance of doubt, having regard to the first sentence of s 7.13(2), which requires consideration of the likely impact of the proposed development on biodiversity values as assessed in the BDAR that relates to the development application. The second sentence makes clear that consideration of the impact of the proposed development on biodiversity values as assessed in the BDAR is not to the exclusion of any other consideration of the impact of the proposed development on biodiversity values. The fact that a consent authority may consider both is addressed in Planners North v Ballina Shire Council (2021) 251 LGERA 309; [2021] NSWLEC 120 at [110]-[111].

34. This fact that the consent authority’s consideration of the impact of the proposed development on biodiversity values as assessed in the BDAR is not exhaustive of the consideration required by s 4.15(1)(b) of the EPA Act is reinforced by s 7.13(6) of the BC Act, which expressly states that s 7.13 does not operate to limit the matters that a consent authority may take into consideration in determining a development application “in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts.”

35. The Council submitted that the effect of s 7.13(6) of the BC Act is that the consent authority (and the Court on appeal) is entitled (by s 7.13(6) of the BC Act) and required (by s 4.15(1) of the EPA Act) to consider the relevant provisions of an instrument under the EPA Act, such as WLEP, to the extent they are not inconsistent with Part 7 of the BC Act.

36. The Council submitted that the Commissioner misconstrued the meaning and effect of s 7.13(2) and (6) of the BC Act. First, the Commissioner misconstrued s 7.13(2) as obliging the Court to apply the BDAR: “Therefore, as the applicant rightly submits, the Court is bound to apply the BDAR to its assessment of biodiversity impacts for this DA: s 7.13(2)”: at [61]. Earlier, the Commissioner had read down the “discretion” in s 7.13(2) of the BC Act to “further” consider under the EPA Act the likely impact of the proposed development on biodiversity values:

“In acknowledging that the Court has a discretion to consider ‘further’ likely biodiversity impacts, I accept, as the applicant submits, that this discretion would only be exercised if there were good reason to do so, and it could not be exercised by setting aside the BDAR assessment as that would be contrary to the scheme and the language of s 7.13(2) which invites ‘further’ consideration, not consideration to displace the assessment of likely impact under the BDAR. The example put is, where the BDAR has been prepared, and a new species is then found on the site which had not been considered. In that circumstance any further impact on biodiversity might be taken into account as a matter of discretion, a circumstance that is not available on the evidence in the present case”: at [58].

37. The Council submits that the Commissioner’s construction of s 7.13(2) of the BC Act is contrary to the express wording of s 7.13(2). The first sentence of s 7.13(2) only requires the consent authority “to take into consideration” the likely impact of the proposed development on biodiversity values “as assessed” in the BDAR. This requirement to consider the assessment in the BDAR of the likely impact of the proposed development on biodiversity values is different to the court being “bound to apply the BDAR” in its consideration of the likely impact of the proposed development on biodiversity values. The Council noted that this misconstruction of s 7.13(2) also affected the Commissioner’s rejection of the Council’s expert evidence “where it contradicts the BDAR”: at [72].

38. Secondly, the Council submits that the Commissioner’s misconstruction of s 7.13(2) and (6) of the BC Act as conferring “exclusive and/or conclusive significance to the assessment of biodiversity values in the BDAR” (Council’s written submissions, [39]), led to the Commissioner failing to consider and apply the mandatory provisions of WLEP (cll 12, 56 and 58 and the relevant Locality Statement), as required by s 4.15(1)(a) of the EPA Act. That error is evidenced by the Commissioner’s finding in [57]:

“I find that the WLEP 2000 clauses at issue in this case have no operative effect for biodiversity as a mandatory consideration and that the assessment under s 4.15 of the EPA Act is confined to “likely impacts of the development” – with the assessment of the biodiversity impacts is to be carried out by the preparation of the BDAR s 7.7(1) BC Act.”

39. Similarly, the Commissioner’s error is revealed in the statement in [60] that:

“The measurement of adequacy (by reference to the BDAR with the BAM behind it) and not some criteria injected by a WLEP 2000 which has not been developed in accordance with the BAM’s scientific methodology.”

40. The third group of grounds of appeal concern the Commissioner’s findings that the relevant provisions of WLEP are inconsistent with Part 7 of the BC Act.

41. The Council noted that the Commissioner started her evaluation of any potential inconsistency between the provisions of WLEP and Part 7 of the BC Act with the erroneous belief that “the analysis of biodiversity impacts … is now the exclusive domain of Pt 7 of the BC Act”: see Vigor’s argument summarised in [44], adopted by the Commissioner in [51]. Hence, in the Commissioner’s view, “the assessment of biodiversity impacts under Pt 7 of the BC Act prevails over inconsistent provisions in the EPA Act, and any instrument made under the Act: s 7.5(1) BC Act. Noting that the WLEP 2000 is such an instrument”: at [52].

42. The Council submits that the Commissioner was mistaken in this belief as s 7.13(2) and (6) of the BC Act expressly permit the consent authority, in determining a development application, to consider under s 4.15(1) of the EPA Act the likely impact of the proposed development on biodiversity values.

43. With this mistaken belief that the analysis of biodiversity impacts is now the exclusive domain of Part 7 of the BC Act, the Commissioner found that s 7.5(1) of the BC Act ousts “the operation of s 4.15 EPA Act and consequently the WLEP 2000 provisions related to the same subject matter”: at [68]. That conclusion, and the earlier conclusion at [57] that “the WLEP 2000 clauses at issue in this case have no operative effect for biodiversity as a mandatory consideration”, applied the finding of Duggan J in Save Sydney’s Koalas at [137]. The Council submitted that the Commissioner erred on a question of law in doing so by, first, misinterpreting s 7.5 and s 7.13 of the BC Act as being “not distinctly different to” s 8.4(6) of the BC Act considered in Save Sydney’s Koalas, and, secondly, failing to distinguish the outcome of the decision in Save Sydney’s Koalas at [137].

44. The Council noted that s 8.4 of the BC Act is in materially different terms to s 7.5 and s 7.13 of the BC Act. Section 8.4(2) and (3) state that an assessment and consideration of the likely impact on biodiversity of a development on biodiversity certified land is not required in determining a development application under Part 4 of the BC Act, whereas s 7.13(2) and (6) of the BC Act expressly permit the consent authority, in determining a development application, to consider the impact of the proposed development on biodiversity values. Thus, s 8.4(2) and (3) prohibit but s 7.13(2) and (6) permit consideration of the likely impact of the proposed development on biodiversity values.

45. The Council noted that s 8.4(6) of the BC Act, applied in Save Sydney’s Koalas, is also in materially different terms to s 7.5(1) of the BC Act. Section 8.4(6) provides that: “This section has effect despite anything to the contrary in the Environmental Planning and Assessment Act 1979 or Part 7 of this Act.” Section 7.5(1) of the BC Act provides that: “This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act).” These two provisions operate differently. Section 7.5(1) only operates if any potential inconsistency between the provisions of Part 7 of the BC Act and the EPA Act and WLEP are not able to be reconciled as a matter of proper statutory interpretation. Section 8.4(1), however, has effect in all circumstances despite anything to the contrary in the EPA Act.

46. The Council submits that the Commissioner’s conclusion that s 7.5(1) of the BC Act ousts the operation of s 4.15(1) of the EPA Act and the provisions of WLEP related to the subject matter of the assessment of biodiversity impacts under Part 7 of the BC Act was reached without any evaluation of which particular provisions of the EPA Act and WLEP are inconsistent with what provisions of Part 7 of the BC Act and, if so, in what way and to what extent the respective provisions are inconsistent with one another.

47. The Council submits that s 7.5(1) of the BC Act only operates if any potential inconsistency between the provisions of Part 7 of the BC Act and the provisions of the EPA Act and WLEP are not able to be reconciled as a matter of statutory construction. This involves a stepped approach: first, to identify the provisions of the respective statutes or instrument which are said to be inconsistent; second, to construe the identified provisions in accordance with ordinary rules of construction, including the principle of harmonious operation, to determine if there is “actual contrariety” between the provisions; and third, only if there is actual contrariety, to determine the extent to which the identified provision of Part 7 of the BC Act prevails over the identified provision of the EPA Act or WLEP, as the former prevails over the latter “only to the extent of any inconsistency”: see Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106 at [6]-[7], [11]-[13].

48. The Council submits that the Commissioner did not undertake this stepped approach to identification of any inconsistency between the provisions of Part 7 of the BC Act and the provisions of the EPA Act and WLEP, so as to trigger the operation of s 7.5(1) of the BC Act.

49. As to the first step, the Council submits that the Commissioner did not identify the particular provision in Part 7 of the BC Act with which any provision of the EPA Act or WLEP is potentially inconsistent. In [52], the Commissioner states that “the assessment of biodiversity impacts under Part 7 of the BC Act” prevails over the inconsistent provisions in the EPA Act and WLEP, but does not identify any particular provision in Part 7 of the BC Act. The provision might be s 7.13(2) of the BC Act, as the Commissioner later refers to this provision as requiring application of the BDAR’s assessment of likely impact on biodiversity values: see at [53], [58], [60], [61], [69] and [72]. But if that is the provision, is it only the first sentence of s 7.13(2) or both sentences? And what is the aspect of s 7.13(2) with which the provisions of the EPA Act or WLEP are said to be inconsistent?

50. The Commissioner does not identify the particular provisions of the EPA Act or WLEP which are said to be potentially inconsistent with s 7.13(2) of the BC Act (if that be the provision of Part 7 of the BC Act). The Commissioner finds that s 7.5(1) of the BC Act ousts “the operation of s 4.15 EPA and consequently the WLEP 2000 provisions related to the same subject matter”: at [68]. And the Commissioner finds in [57] that “the WLEP 2000 clauses at issue in this case have no operative effect for biodiversity as a mandatory consideration and that the assessment under s 4.15 of the EPA Act is confined to ‘likely impacts of the development’.” But the Commissioner does not identify with particularity what is “the same subject matter” and hence which provisions of either s 4.15 of the EPA Act or the clauses in WLEP “at issue in this case” are “related” to that same subject matter.

51. Section 4.15(1)(a) of the EPA Act requires the consent authority to consider the provisions of any environmental planning instrument that apply to the land to which the development application relates, while s 4.15(1)(b) requires the consent authority to consider the likely impacts of the development, including environmental impacts on both the natural and built environments. The Commissioner does not identify whether either of these provisions is said to be inconsistent with s 7.13(2) of the BC Act.

52. Clause 12(1) and (3) of WLEP require the consent authority, before granting consent for development, to be satisfied that the development is consistent with, first, any relevant principles of development control in Part 4 and, second, the desired future character described in the relevant Locality Statement. The general principles of development control in Part 4 of relevance to the proposed development are in cll 56 and 58 of WLEP. The relevant Locality Statement is that for Locality B2 Oxford Falls Valley. But what aspects of these provisions (cll 12, 56, and 58 and the relevant Locality Statement) are said to be “related to the same subject matter”, if any? The Commissioner does not say.

53. As to the second step, the Council submits that the Commissioner does not identify how, if at all, any provision of the EPA Act (presumably s 4.15) or WLEP (presumably cl 12(1) and (3) and by reference, cll 56 and 58 and the Locality Statement for the Locality B2 Oxford Falls Valley) is inconsistent with any provision of Part 7 of the BC Act (presumably s 7.13(2)). The Council submits the Commissioner did not seek to construe these provisions in a way which best achieves a harmonious result, so as to avoid any inconsistency: Univers**al Property Group Pty Ltd v Blacktown City Council at [13]. The Commissioner was required to, but did not, endeavour to reconcile any competing language and adjust the meaning of the competing provisions to achieve the result which would best give effect to the purpose and language of those provisions whilst maintaining their unity: Parks and Pla**ygrounds Movement Inc v Newcastle City Council (2010) 179 LGERA 346; [2010] NSWLEC 231 at [81].

54. As to the third step, the Council submitted that the Commissioner did not seek to identify the extent to which there was any inconsistency, so as to determine how s 7.5(1) operated to cause any provision of Part 7 of the BC Act (presumably s 7.13(2)) to prevail “to the extent of any inconsistency” over any identified provision of the EPA Act or WLEP.

55. The Council submits that, in these circumstances, the Commissioner misconstrued and misapplied s 7.15(1) of the BC Act in finding that the provisions of the EPA Act and WLEP have no operative effect: eg at [57], [68].

Vigor’s response to the Council’s argument

56. Vigor’s first response to the Council’s argument that the Commissioner erred on questions of law by misconstruing and misapplying the relevant statutory provisions was to set the context for how the issue of inconsistency between the relevant statutory provisions arose.

57. In the court below, Vigor made two alternative arguments in its submissions in reply. Vigor’s primary case was that neither cl 12(1)(a), and by reference cll 56 and 58 of WLEP, nor cl 12(3)(b), and by reference the description of desired future character in the relevant Locality Statement of WLEP, were a barrier to the Court granting consent to the proposed development. Both sets of provisions require the consent authority to be satisfied that the development is consistent with the matters specified in cl 12(1) and (3) respectively before being able to grant consent to the development. Vigor argued that on a proper construction of the referenced cll 56 and 58 and the relevant Locality Statement, and on the evidence before the Court, the Commissioner could be satisfied that the development is consistent with the matters in cl 12(1) and (3) of WLEP. Vigor explained, firstly, what is meant by consistency for the purposes of determining whether the development is consistent with the matters specified in cll 12(1) and (3) of the WLEP; secondly, what the general principles of development control in cll 56 and 58 of WLEP mean; and thirdly, what the description of desired future character in the Locality Statement for the Locality B2 Oxford Falls Valley means. Vigor submitted that on the evidence, particularly the joint expert report of the planners, the proposed development was consistent with the matters in cl 12(1) and (3) of WLEP. It followed that none of the provisions of WLEP was a barrier to the grant of development consent.

58. Vigor next advanced in the court below an alternative argument to address what it perceived was the Council’s case. Vigor perceived that the Council was arguing that the relevant provisions of WLEP imposed a different standard for the assessment of biodiversity impacts, either no loss (rather than no net loss) or an improvement or enhancement of biodiversity. This argument of the Council was described by Vigor as allowing the WLEP provisions “to bleed into the biodiversity assessment of the proposal” (Applicant’s submissions in reply in the court below, [21]). Vigor argued that there was “a fundamental problem with doing so”. This was that, on this construction, the provisions of WLEP would be inconsistent with Part 7 of the BC Act to the extent that they deal with the same subject matter of the assessment of biodiversity impacts.

59. Vigor noted that the Commissioner’s reasons for judgment, which are challenged in this appeal, accepted Vigor’s submissions on its alternative argument. Although the Commissioner in the summary of the “Applicant’s position” did refer to Vigor’s primary argument (in [44]-[49]), the Commissioner’s dispositive reasoning accepted Vigor’s alternative argument (including in [50], [51]-[60], and [68]). Vigor submits that the Commissioner was justified in doing so insofar as the relevant provisions of WLEP can be seen to require “improvements in biodiversity”, as this would contradict the biodiversity offsets scheme under the BC Act and erect “a higher bar to an approval than the standard adopted in the BAM by which biodiversity impacts of any development must be assessed”: at [57] of the Commissioner’s judgment.

60. After setting this context for evaluating whether the Commissioner erred on questions of law in the ways challenged by the Council, Vigor responded to the grounds of appeal which focused on the language of the Commissioner as revealing misconstruction of the relevant statutory provisions. Vigor submitted that the Commissioner’s language should not be analysed with an eye finely attuned for error, but instead considering the substance of what was intended to be conveyed.

61. In ground 2, although the Commissioner stated in [52] that “the assessment of biodiversity impacts under Part 7 of the BC Act prevails over inconsistent provisions of the EPA Act, and any instrument made under the Act”, Vigor submits that the Commissioner was simply expressing a rolled-up conclusion of the operation of s 7.5(1) of the BC Act so that Part 7 of the BC Act prevails over the provisions of the EPA Act and WLEP to the extent of any inconsistency.

62. In ground 5, the Commissioner’s statement in [51] and [53], adopting Vigor’s submissions in [50], that “inconsistent provisions that impose a standard, method or outcome in biodiversity assessment that departs from the biodiversity offsets scheme must be ignored”, in Vigor’s submission was merely an explanation of the effect of one provision prevailing over another by the operation of s 7.5(1) of the BC Act.

63. Similarly, in ground 1, the Commissioner’s statement in [61] that the Court “is bound to apply the BDAR to its assessment of biodiversity impacts for this DA”, is again a statement about the effect of s 7.13(2).

64. Vigor noted that grounds 4(b) and 6(b) concern the Commissioner’s addressing of the Council’s argument in the court below that the relevant provisions of WLEP require improvements in biodiversity. Vigor submits that the Commissioner rightly found that to consider provisions that would on the Council’s argument mandate refusal on biodiversity grounds was contrary the biodiversity offsets scheme under the BC Act (at [58]).

65. In relation to ground 6(a), Vigor submits that the Commissioner’s finding of inconsistency between Part 7 of the BC Act and the EPA Act and WLEP adopted Vigor’s submissions on inconsistency (at [51]), which were summarised in the judgment (including at [44] and [50], and expressly at [53], [56], [57], [58], [61] and [66] and impliedly elsewhere where Vigor’s submissions are adopted without attribution as to the source). Vigor submits that this provided sufficient explanation of the Commissioner’s reasons for the finding of inconsistency. Vigor notes that there is no ground of appeal against inadequate reasons.

66. As to ground 3, Vigor submits that although the conclusion in Save Sydney’s Koala**s depended on the particular statutory provisions there considered, by parity of reason, Part 7 of the BC Act also excluded the provisions of WLEP that imposed similar preconditions. Hence, the Commissioner did not err on a question of law by finding that the WLEP provisions were inconsistent with Part 7 of the BC Act.

The Commissioner misconstrued the relevant statutory provisions

67. Although Vigor’s submissions on this appeal may provide an explanation of why the Commissioner dealt with the issue of inconsistency between Part 7 of the BC Act and the EPA Act and WLEP in the way that she did, the Commissioner’s approach nevertheless involved error on questions of law in the respects raised in the Council’s grounds of appeal. The Commissioner misconstrued not only s 7.5(1) of the BC Act, which led to asking the wrong question and applying the wrong test for determining any inconsistency between the relevant statutory provisions, but also s 7.13(2) of the BC Act, s 4.15(1) of the EPA Act and cll 12, 56 and 58 and the relevant Locality Statement of WLEP, which led to misapplication of s 7.5(1) of the BC Act to those statutory provisions. I adopt and accept the Council’s arguments, set out earlier, on the first and second groups of grounds of appeal as to the Commissioner’s misconstruction of s 7.5(1) of the BC Act and s 7.13(2) of the BC Act.

68. I also uphold the Council’s arguments on the third group of grounds of appeal. The Commissioner erred on questions of law in determining whether there was any inconsistency and, if so, the nature and scope of any inconsistency between the relevant statutory provisions for the purposes of s 7.5(1) of the BC Act.

69. The first step in determining inconsistency for the purposes of s 7.5(1) of the BC Act involves identification of the provisions of Part 7 of the BC Act and any provisions of the EPA Act or any instrument under that Act, which are potentially inconsistent with one another. The only provision in Part 7 of the BC Act which the parties identified as founding inconsistency was s 7.13, but the Commissioner did not identify which subsection of s 7.13 was the provision with which any provisions of the EPA Act or WLEP were potentially inconsistent. The Commissioner did refer a number of times to s 7.13(2) of the BC Act as requiring assessment of biodiversity impacts (such as [52], [53], [58], [59], [61] and [69]), but those references neither identified the particular aspect of s 7.13(2) with which provisions of the EPA Act or WLEP were potentially inconsistent, nor accurately described the meaning and effect of s 7.13(2).

70. Section s 7.13(2) of the BC Act provides for both a relevant consideration and a permissible consideration to be taken into account in determining a development application. The relevant consideration is specified in the first sentence of s 7.13(2). This identifies the matter to be considered as “the likely impact of the proposed development on biodiversity values.” That likely impact could be assessed by different methods. One method is the biodiversity assessment method (BAM) prescribed by order of the Minister under s 6.7(1) of the BC Act. A BDAR, which must accompany a development application in certain circumstances, is required to assess the biodiversity values of the land subject to the proposed development in accordance with the BAM and the impact of the proposed development on the biodiversity values of that land, also in accordance with the BAM: s 6.12(a) and (b) of the BC Act. The first sentence of s 7.13(2) of the BC Act requires the consent authority to consider the matter of the likely impact of the proposed development on biodiversity values “as assessed in the biodiversity assessment report that relates to the application.” The matter remains the likely impact of the of the proposed development on biodiversity values, but the consideration of this matter that is required is by considering how that matter is assessed in the BDAR that relates to the development application.

71. The permissible consideration is specified in the second sentence of s 7.13(2) of the BC Act. The matter that may be considered (but it is not required to be considered) is the same matter as is specified in the first sentence of the likely impact of the proposed development on biodiversity values. The difference between the two sentences is that whilst the first sentence requires consideration of that matter to be as assessed in the BDAR, the second sentence permits consideration of that matter otherwise than as assessed in the BDAR. This explains why the first sentence provides a relevant consideration that must be taken into account while the second sentence provides a permissible matter that may be taken into account. The assessment of the matter in the BDAR needs to be considered to give effect to the biodiversity offsets scheme’s prescription of use of the BAM to assess the biodiversity values of the land and the likely impact of the development on those biodiversity values, but any other assessment of the matter is not prescribed and may be, but need not be, considered in determining the development application.

72. With this understanding of s 7.13(2) of the BC Act, the Commissioner needed to identify the provisions of the EPA Act or WLEP or both which potentially might be inconsistent with s 7.13(2). Again, the Commissioner did not clearly identify such provisions of the EPA Act or WLEP.

73. The Commissioner did refer to s 4.15(1) of the EPA Act (such as at [53], [59], [68] and [69]) but did not identify which aspects of that subsection were potentially inconsistent with s 7.13(2) of the BC Act (if that is the relevant provision in Part 7 of the BC Act). Section 4.15(1) of the EPA requires a consent authority, in determining a development application, to take into consideration such of the matters specified as are of relevance to the development the subject of the development application. One of these matters is the provisions of any environmental planning instrument that apply to the land to which the development application relates (in paragraph (a)). Another matter is the likely impacts of that development, including environmental impacts on both the natural and built environments (paragraph (b)). It is not obvious why or how these provisions could be potentially inconsistent with s 7.13(2) of the BC Act. Both s 4.15(1) of the EPA Act and s 7.13(2) of the BC Act provisions require or permit consideration of matters in determining a development application, but they are able to operate harmoniously and cumulatively. The consideration of the matters required by s 4.15(1)(a) or (b) of the EPA Act does not alter, impair or detract from the consideration of the matters required or permitted to be considered by s 7.13(2) of the BC Act (as I explain further below). On the face of the two provisions, there is no apparent inconsistency.

74. As far as the provisions of WLEP, the Commissioner did refer generically to “the provisions at issue” (at [51]), “the WLEP 2000 provisions” (at [57]), “WLEP 2000” (at [60]), “the other WLEP 2000 provision” (from the context, cl 12(3)(b)) (at [65]), “the WLEP 2000 provisions related to the same subject matter” (at [68]), “the WLEP 2000 provisions including the DFC provision” (at [68]), and “these clauses are principles contained in Part 4 and are intended to be given substantive operation through cl 12(1)(a) of the WLEP 2000” (at [69]). But these generic references do not identify expressly the particular provisions or the particular aspects of the provisions that are said to be inconsistent with s 7.13(2) of the BC Act (if this is the provision in Part 7 of the BC Act). The Commissioner presupposes that unidentified provisions of WLEP are inconsistent (such as [51], [52], [57] and [68]), but without identifying what particular provision or aspect of any provision is inconsistent with s 7.13(2) of the BC Act.

75. The Commissioner does say that provisions of WLEP which “impose a standard method or outcome in biodiversity outcome” (at [53]) or require “improvements in biodiversity” (at [57]) contradict the biodiversity offsets scheme, but the Commissioner does not identify which, if any, of the provisions of WLEP actually do either of these things. On a proper construction of cl 12(1) of WLEP and cll 56 and 58, to which reference is made, and cl 12(3) of WLEP and the Locality Statement for Locality B2 Oxford Falls Valley, to which reference is made, the provisions do neither of these things, as explained further below.

76. In these circumstances, the foundation for the operation of s 7.5(1) of the BC Act was not established– there was no identification by the Commissioner of the provisions of Part 7 of the BC Act and the provisions of the EPA Act and WLEP which are said to be inconsistent with one another.

77. The second step in determining inconsistency for the purposes of s 7.5(1) of the BC Act is to construe the provisions identified as being potentially inconsistent in accordance with ordinary rules of construction to determine if in fact there is actual contrariety between the provisions. One of the principles of statutory construction is the principle of harmonious operation. As Gageler J said in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [98]:

“That principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create ‘a very strong presumption that the … legislature did not intend to contradict itself, but intended that both … should operate’.”

78. Basten JA in Universal Property Group Pty Ltd v Blacktown City Council at [12] and [13] referred to this statement and added:

“12. The principle should be applied equally, if not with greater emphasis on the search for harmonious operation, when considering two statutory instruments administered within the one government department with respect to a single broad subject matter, namely State environmental policies governing development and use of land.

13. The principle of harmonious operation gives preference to a reasonable construction of a statutory instrument if the result is consistent with the operation of another, where a different interpretation would create inconsistency.”

79. In this case, if the provisions that are supposed to be inconsistent are s 7.13(2) of the BC Act and s 4.15(1) of the EPA Act and cl 12(1) and (3) and the provisions referenced in cl 12(1) and (3) of WLEP, the principle of harmonious operation has special application. All of the provisions regulate the consent authority’s consideration of matters in determining a development application under the EPA Act. That is evident for s 4.15(1) of the EPA Act and cl 12(1) and (3) of WLEP, but it is also true for s 7.13(2) of the BC Act.

80. Section 7.13 of the BC Act applies to an application for development consent under Part 4 of the EPA Act that is required under Division 2 of Part 7 of the BC Act to be accompanied by a BDAR: s 7.13(1). Section 7.13(2) specifies a relevant consideration and a permissible consideration to be taken into consideration under the EPA Act when determining such a development application. In this way, s 7.13(2) adds these matters as matters to be considered by a consent authority under s 4.15(1) of the EPA Act. That these are additional considerations and not substituted considerations is made plain not only by the terms of s 7.13(2), but even more clearly by s 7.13(6), which provides that:

“(6) This section does not operate to limit the matters that a consent authority may take into consideration —

(a) in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts, or

(b) in deciding whether to reduce or increase the number of biodiversity credits to be retired.”

81. Section 4.15(1)(a) of the EPA Act requires the consent authority to consider the provisions of any applicable environmental planning instrument, which in this case includes WLEP. Clause 12(1) and (3) of WLEP require the consent authority to consider and to form an opinion of satisfaction regarding the consistency of the development with any relevant general principles of development control in Part 4 and the desired future character described in the relevant Locality Statement. These requirements of s 4.15(1)(a) of the EPA Act and cl 12(1) and (3) of WLEP in no way “alter, impair or detract from” the operation of s 7.13(2) and (6) of the BC Act: see Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 at [32].

82. These provisions of the EPA Act and WLEP do specify matters to be considered by a consent authority in determining a development application, but neither the obligation to consider the matters nor the matters themselves are inconsistent with the obligation to consider the matters in s 7.13(2) of the BC Act nor the matters themselves. As I have noted, s 7.13(2) of the BC Act adds a relevant matter and a permissible matter for the consent authority to take into account, but s 7.13(6) of the BC Act makes clear that the section, in doing so, does not operate to limit the matters that a consent authority can take into consideration in relation to those relevant and permissible matters.

83. This construction of the relevant provisions of Part 7 of the BC Act, EPA Act and WLEP implements the principle of harmonious operation. It gives preference to a reasonable construction of Part 7 of the BC Act and the EPA Act and WLEP that allows all to operate harmoniously, where a different interpretation would create inconsistency.

84. The third step in the application of s 7.5(1) of the BC Act of determining the extent of inconsistency between the relevant statutory provisions does not arise, as on a proper construction of the relevant statutory provisions there is no actual inconsistency.

85. In these ways, the Commissioner erred on a question of law in construing the relevant provisions of Part 7 of the BC Act and the relevant provisions of the EPA Act and WLEP as being inconsistent with each other. That error led to the Commissioner finding that, by operation of s 7.5(1) of the BC Act, the provisions of WLEP “at issue in this case” (presumably cll 12, 56 and 58 and the relevant Locality Statement) “have no operative effect for biodiversity as a mandatory consideration” as well as “the assessment under s 4.15 of the EPA Act is confined to ‘likely impacts of the development’”: at [57]. That conclusion meant that the Commissioner failed to consider the relevant matters in s 4.15(1)(a) and (b) of the EPA Act and cl 12(1) and (3) of WLEP and cll 56 and 58 and the relevant Locality Statement referred to in those clauses. The failure to consider these relevant matters involved error on a question of law.

Materiality of the errors

86. The errors of misconstruction of the relevant statutory provisions, and the failure to consider the relevant matters the Commissioner was bound to consider, are material. Although the Commissioner considered, in a cursory manner, aspects of cll 56 and 58 of WLEP, that consideration miscarried in at least two respects. First, the consideration of cll 56 and 58 required by cl 12(1) of WLEP was for the purposes of determining whether the Commissioner was satisfied that the development is consistent with the relevant general principles of development control in cll 56 and 58. The Commissioner did not undertake that consideration or form the requisite opinion of satisfaction before granting development consent. Second, the Commissioner’s consideration was infected by the Commissioner’s erroneous conclusion that cll 12(1), 56 and 58 of WLEP have no operative effect.

87. Likewise, the Commissioner’s construction of cl 12(3) of WLEP and the relevant Locality Statement miscarried in the same two respects. First, the consideration of the description of the desired future character in the Locality Statement for B2 Oxford Falls Valley, required by cl 12(3) of WLEP, was for the purposes of determining whether the Commissioner was satisfied that the development is consistent with that desired future character. The Commissioner did not undertake that consideration or form the requisite opinion of satisfaction before granting development consent. Second, the Commissioner’s consideration was infected by her conclusion that cl 12(3) of WLEP and the relevant Locality Statement have no operative effect.

88. As a consequence, the Commissioner’s errors are material and vitiate the decision to grant development consent to the seniors living development.

Remittal of the proceedings

89. The Council sought an exclusionary remittal order, such as was ordered in Muscat Development**s Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121, on the basis that there is a reasonable apprehension that the Commissioner has predetermined the findings of fact that will be necessary to make on the remitter of the matter.

90. I do not agree. The errors on questions of law that have been established led to the Commissioner not making findings of fact necessary to be made under s 4.15(1) of the EPA Act and cl 12(1) and (3) of WLEP, as I have explained earlier. On remitter of the matter, the Commissioner will be required to make such findings of fact, in accordance with law and these reasons for judgment. There is no reason to apprehend that the Commissioner will not discharge that function properly.

Orders

91. The Commissioner’s decision should be set aside and the matter remitted to the Commissioner to be re-determined. The parties agreed that the usual order that costs follow the event should be made.

92. The Court orders:

93. The appeal is upheld.

94. The decision and orders of Senior Commissioner Dixon of 21 July 2025 are set aside.

95. The proceedings are remitted to Senior Commissioner Dixon to be determined according to law and these reasons for judgment.

96. The respondent is to pay the appellant’s costs of the appeal.

97. The respondent is to have a certificate under s 6(1AA) of the Suitors' Fund Act 1951 with respect to the costs of the appeal referred to in Order 4, if otherwise qualified.

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Amendments

04 December 2025

Order 5 inserted pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW).