Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) v Minister for Planning

The modifications requested

1. The modifications requested by the applicant were amended during the hearing of the appeal. In the further amended modification application, the applicant sought to change the terms of the Minister's approval by deleting certain definitions and revoking or varying certain conditions. The modifications requested are as follows:

• Definitions: The applicant requests that the definitions in the Minister's approval of "INCITEC", "LLDPE" (Linear low-density polyethylene) and "MSB" (Mine Subsidence Board) be deleted, as they are no longer necessary.
• Condition 1.4: The condition currently requires the project to be undertaken within eight years from the date of commencement of the works the subject of the approval. That eight year period has expired. The applicant requests an extension of time to undertake the project, other than the operation of the water treatment plant and the containment cell to 31 December 2018. The applicant requests this extension be made by varying the condition under s 75W(4) rather than by the applicant using the mechanism in the condition of applying to the Director General (of the Department of Planning and Environment) for an extension of time to undertake the project. The applicant also requests a variation of the wording of the mechanism in the condition for applying for an extension of time to undertake the project. The applicant requests that this mechanism be varied so as to remove the power of the Director General, in approving an extension, to require the proponent to carry out further investigations or works to mitigate impacts as considered necessary. The applicant contended that, as the remediation of the site and construction and capping of the containment cell have been completed, the Director General should not be able to require the applicant to undertake further investigations or works.
• Condition 1.6: This condition restricts occupation of land within the site that has been subdivided until remediation activities involving handling of contaminated materials in adjacent lots or in a buffer zone of at least 200 metres in the adjacent lot, whichever is the greatest, have been completed, unless otherwise agreed by the Director General and the Environment Protection Authority (EPA). The applicant requests this condition be revoked. The applicant contended that, as all remediated activities including handling of contaminated materials have been completed, the condition has no further utility and should be deleted.
• Condition 1.22: This condition requires the proponent to inform the Department of Planning and Environment and the EPA in writing as soon as practicable and within seven days of the proponent becoming aware of any information or data indicating a material change in conditions at the site or in its surrounding environment which could adversely affect the prospects of successful investigation or remediation of the site, or result in harm to the environment. The applicant requests this condition be revoked. The applicant contended that, as investigation and remediation of the site have been completed, the condition has no further utility and should be deleted. The applicant contended that it is already under an obligation to report and notify any pollution incident on the site under the Protection of the Environment Operations Act 1997 and the environment protection licence (authorising the discharge of polluted water from the site) issued to the applicant under that Act.
• Condition 5.2: This condition requires the proponent to undertake continuously meteorological monitoring from the commencement of any works on the site. The applicant requests that this condition be varied to fix an end point for undertaking the meteorological monitoring. The applicant proposes that the end point be when all relevant project earthworks on the site are complete.
• Condition 5.3: This condition requires the proponent to prepare and implement a Groundwater Monitoring Program for the remediation works and post remediation activities as part of the environmental management plans required under conditions 7.4 and 8.6. The Groundwater Monitoring Program was required to be submitted to the then Department of Environment and Conservation (DEC) for approval prior to the commencement of remediation. The condition prescribes what the Groundwater Monitoring Program must include. The applicant has not complied with condition 5.3 because it did not secure the approval of the DEC of a groundwater monitoring program prior to the applicant commencing remediation. The applicant seeks to rectify this breach by varying the condition to refer to a specific Groundwater Monitoring and Management Plan dated 17 June 2016 that had been prepared by the applicant and that was referenced in the applicant's environmental protection licence for the site. The modified condition 5.3 would require the proponent to undertake groundwater monitoring and management in accordance with this Groundwater Monitoring and Management Plan.
• Condition 5.5: This condition requires the proponent to continue the groundwater monitoring in the shallow and deeper aquifer around the containment cell until such time as the EPA agrees that it is no longer required. The applicant requests this condition be revoked. The applicant contended that, as groundwater monitoring and management would be undertaken in accordance with the Groundwater Monitoring and Management Plan to be referred to in the modified condition 5.3, there is no utility in requiring groundwater monitoring under condition 5.5.
• Condition 5.11: This condition requires the proponent, within 12 months of the commencement of works on the site and every year thereafter for the duration of the remediation works, or as otherwise agreed or required by the Director General, to undertake an environmental audit of the project. An environmental audit report is required to be submitted to the Director General for approval within one month of completion of the audit. The condition prescribes who is to undertake the environmental audit and how it is to be undertaken. The applicant requests that this condition be revoked. The applicant contended that, as remediation of the site has been completed, the containment cell has been closed and capped, the water treatment plant is in operation and only associated earthworks are still proposed to be undertaken, this condition has no further utility as it only requires an environmental audit and an environmental audit report for the duration of the remediation works.
• Condition 6.2: This condition requires the proponent to establish and maintain a new website, or dedicated pages within its existing website, for the provision of electronic information associated with the project. The condition requires the proponent to publish and maintain up to date information on the matters prescribed in the condition, including summary results of monitoring undertaken as part of the approval. The applicant requests that this condition be varied to delete the requirement to maintain up to date information on the website and to limit the summary results of monitoring that the proponent is required to publish on the website to be the summary results of monitoring undertaken during the remediation activities (which the applicant contended have been completed). The applicant contended that, as the remediation of the site has been completed, the containment cell has been closed and capped, the water treatment plant has been constructed and is in operation and only associated earthworks remain to be undertaken, it is unreasonable to require ongoing maintenance of the website in accordance with this condition.
• Condition 7.4: This condition requires the proponent, as part of the Remediation Environmental Management Plan required under condition 7.3, to prepare and implement an Air Quality Management Plan, a Containment Water Management Plan, an Erosion and Sedimentation Management Protocol, a Noise and Vibration Management Plan and a Traffic and Transport Management Protocol. The applicant requests that this condition be varied to delete the requirement to implement all of these environmental management plans other than the Air Quality Management Plan. The applicant also requests that an end point be fixed for implementing the Air Quality Management Plan, which the applicant submits should be the completion of all project earthworks on the site.

The issues on the appeal

1. On the appeal, the Minister raised two sets of contentions. The first contention was jurisdictional: the Court has no power to modify the Minister's approval because of the absence of owners' consent for the modification application. Clause 8F of Sch 4 of the Transitional Regulation 2017 provides that: (1) The consent of the owner of land on which a project is to be carried out is required for a project application or modification application unless: (a) the application is made by a public authority, or (b) the application relates to a critical infrastructure project, or (c) the application relates to a mining or petroleum production project, or (d) the application relates to a linear infrastructure project, or (e) the application relates to a project on land with multiple owners designated by the Secretary for the purposes of this clause.
2. The land on which the project approved by the Minister's approval is to be carried out has been subdivided by the applicant and a number of the subdivided lots have been sold to other persons. The applicant has retained certain lots, including the land on which the containment cell has been constructed. The applicant has provided its consent as owner of the land it has retained, however, none of the new owners of the subdivided lots have provided their consent for the modification application.
3. The Minister contended that the consent of all owners of the subdivided lots that made up the land on which the project approved by the Minister's approval is to be carried out needs to be obtained before the Court has power to determine the modification application.
4. The applicant disputed that the consent of all owners of the lots that made up the land on which the approved project is to be carried out was required. The applicant submitted that, as the project has been carried out, including by remediating, subdividing and selling parts of the land, the land on which the project is to be carried out has been progressively reduced. Only that remaining part of the land on which the project is still to be carried out should be considered, for the purposes of requiring the consent of the owner, as land on which the project is to be carried out. The owner of this remaining land is the applicant. Its consent to the modification application has been provided. The applicant submitted that the consent of the owners of land on which the project has already been carried out is not required under cl 8F(1), citing Platform Project Services Pty Ltd v Minister for Planning [2017] NSWLEC 102 at [18], [19].
5. The Minister's second set of contentions concern the modifications requested by the applicant. The Minister contended that the modifications requested, involving changing the terms of the Minister's approval by deleting various definitions and revoking or varying various conditions of the approval, should not be approved for one or more of the following three reasons: 1. there was insufficient information to support some of the modifications; 2. some of the modifications are not justified on the evidence; and 3. some of the modifications are unnecessary or undesirable as a matter of policy or public interest and as an issue arising in relation to enforcement.
6. I have determined that the Minister's contention concerning the lack of owners' consent should be upheld. The consent of all owners of lots comprising the land on which the Minister approved the carrying out of the project is required to be obtained before the Court can exercise the power under s 75W(4) of the EPA Act to determine the modification application. As the consent of all of the owners has not been obtained, the Court cannot modify the Minister's approval. This conclusion makes it unnecessary to determine whether the particular modifications requested should be approved. There is no utility in deciding whether particular modifications should be approved if there is no power to approve any of the requested modifications.

The construction of the statutory provision

1. The issue of owner's consent turns on the construction of cl 8F(1) of Sch 4 of the Transitional Regulation 2017, having regard to the text of cl 8F(1) and the context of the statutory procedure for modification of a Minister's approval to carry out a project.
2. I will start with the context for modification of a Minister's approval to carry out a project. Section 75W(2) enables "the proponent" to request the Minister to modify the Minister's approval for a project. The proponent of a project is defined in s 75A to include "the person proposing to carry out the development comprising all or any part of the project". In this case, the proponent was the applicant.
3. The "project" is defined in s 75A of the EPA Act to mean development that is declared under s 75B to be a project to which Part 3A applies. Section 75B(1)(a) provides that Part 3A applies to the carrying out of development that is declared under s 75B to be a project to which Part 3A applies by a State environmental planning policy. The project approved by the Minister was a development of a kind described in cl 28(b) of Sch 1 of State Environmental Planning Policy (Major Projects) 2005. It was, therefore, development declared under s 75B(1) to be a project to which Part 3A applies.
4. "The Minister's approval for a project" is the approval granted by the Minister under s 75J(1) approving the carrying out of the project. The Minister's approval defines both the project and the land on which the project is to be carried out.
5. The request under s 75W is to modify the Minister's approval for the project. Modification of approval is defined in s 75W(1) to mean: "changing the terms of a Minister's approval, including: (a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and (b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval."
6. With this context, I turn to the terms of cl 8F(1) of Sch 4 of the Transitional Regulation 2017. The subclause requires "the consent of the owner of land on which a project is to be carried out… for a… modification application". The "modification application" refers to the request under s 75W(2) to modify the Minister's approval for a project. The "project", in the context of a modification application, refers to the project that has been approved by the Minister under Part 3A (relevantly in this case, under s 75J). The "land" refers to the land on which the project approved by the Minister is to be carried out. This land is defined in the Minister's approval for the project.
7. The "owner" refers to the owner (or owners) of the land on which the project approved by the Minister is to be carried out. The category of "owner" remains fixed by reference to the land on which the "project" approved by the Minister is to be carried out. The person or persons who might be an "owner" can, however, change over time. As happened in this case, the land on which the Minister approved the carrying out of the project could be subdivided and the original owner of the land could sell some or all of the subdivided lots. Such subdivision and sale of the land does not change the "land" on which the "project" approved by the Minister is to be carried out. The land remains that defined in the Minister's approval as the land on which the approved project is to be carried out. Because the "land" does not change, the category of "owner" also does not change. The "owner" remains as the person or persons who own the "land". The identity of the person or persons who is or are the owner of the land might change from time to time but this does not change the category of "owner" itself.
8. Applying this construction to the modification application in this case, cl 8F(1) required the consent of each person who is the owner of a lot that resulted from the subdivision of the land, defined in the Minister's approval, on which the Minister approved of the carrying out of the project. There are now multiple owners, when once there was but a single owner, of the land on which the Minister approved of the carrying out of the project. The consent of each of these multiple owners is required for the modification application.
9. The circumstance that there could be multiple owners of land on which a project is to be carried out is expressly addressed in cl 8F(1)(e) of Sch 4 of the Transitional Regulation 2017. The Secretary of the Department of Planning and Environment can designate, for the purposes of cl 8F, a project on land with multiple owners. If the Secretary does so designate the project, the consent of the multiple owners of the land on which the project is to be carried out is not required, either for a project application or a modification application.
10. I was informed at the hearing that the applicant in this case had requested, by letter dated 7 August 2018, the Secretary to designate the project for the purposes of cl 8F(1). The parties provided, after the hearing, a copy of the Secretary's decision dated 22 August 2018 not to designate the project under cl 8F(1).
11. The existence of the power of the Secretary to designate a project on land with multiple owners for the purposes of cl 8F(1) supports the construction that the consent of multiple owners of land on which the project is to be carried out is required, unless the Secretary designates otherwise.

A prior decision is distinguishable

1. I do not consider that the decision in Platform Project Services Pty Ltd v Minister for Planning requires a different conclusion. That case concerned a different modification application, to which the provisions of 8F(1) operated differently.
2. In that case, the Minister had approved a concept plan under Part 3A. The land the subject of the approved concept plan included a portion of a public street owned by a local council. Under s 75W, the proponent requested the Minister to modify the concept plan approval to remove the portion of the public street owned by the council. The proponent no longer proposed to carry out the project on that portion of the public street and accordingly wished to remove the land from the proposed development site. The issue was whether the consent of the council was required for this modification to remove the portion of the public street from the land on which the project was to be carried out.
3. Justice Pain held that the consent of the council was not required for that modification application. The modification proposed was to carry out the project on land other than the council owned portion of the public street (at [19]). That is to say, the modification proposed to remove the council owned portion of the public street as land to which the concept plan approval applied. In these circumstances, the clause did not require the consent of the council, as the owner of the public street, for the modification application to remove the public street from the concept plan approval as land on which the project would be carried out.
4. The modification application in the present case is different. The request is to modify the Minister's approval of a project, not a concept plan approval. There is no request to change the terms of the Minister's approval to remove any part of the site from being land on which the project approved by the Minister is to be carried out or to not carry out the project on any land. In short, the facts and circumstances founding the decision in Platform Project Services Pty Ltd v Minister for Planning do not apply in the present case.

The errors in the applicant's construction of the statutory provision

1. I reject the applicant's submissions as to the construction of cl 8F(1). The applicant submitted that the phrase in cl 8F(1), "land on which a project is to be carried out", is prospective and forward looking, citing Platform Project Services Pty Ltd v Minister for Planning at [18] and [19]. The applicant submitted that the consent of the owner of that land is only required when the modification application proposes the carrying out of the project on their land. This misconstrues the phrase having regard to the text and the context of cl 8F(1).
2. First, contrary to the applicant's submission, the enquiry required by cl 8F(1) is not to search for a "project" in the modifications requested in the "modification application" that is to be carried out. Indeed, the modification of the approval requested may not involve modification of the project itself, but only an aspect of how the project is to be carried out. "Modification of approval", as s 75W(1) explains, involves changing the terms of the Minister's approval, including by revoking or varying a condition of the approval or imposing an additional condition of the approval. Such a change in the terms of the Minister's approval does not need to involve a change in the project to be carried out on the land.
3. Rather, the "project" referred to in cl 8F(1) is the project approved by the Minister under Part 3A of the EPA Act. The modification application is to modify the Minister's approval for that project. The project referred to in cl 8F(1) does not change as the project approved by the Minister is carried out. The project is defined by the Minister's approval and remains the same, regardless of when the modification application is made, or to what extent the project approved by the Minister has been carried out at the time of the modification application.
4. Secondly, there is no restriction on when a request for modification of the Minister's approval can be made. A request for modification can be made at any time in the carrying out of a project in accordance with the Minister's approval, including after the project has been carried out in part or in whole. Whilst a project application can only be made and project approval can only be granted for a project that is to be carried out, a modification application can be made to modify a project approval even after the project has been carried out: see Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSWLEC 240 at [27]-[33].
5. In these circumstances, contrary to the applicant's submission, there is no reason to read cl 8F(1) as requiring owner's consent only for a modification application for a project that is to be carried out.
6. Thirdly, the applicant's submission misconstrues cl 8F(1), for the reasons I have explained earlier. The enquiry required by cl 8F(1) is not to ascertain what part of the project is still to be carried out at the time the modification application is made, so as to determine the owner of the land on which that part of the project is to be carried out. Rather, the Minister's approval defines the project to be carried out and the land on which the project is to be carried out. The definition of the "project" and the "land" in the Minister's approval fixes who is the "owner" of the land on which the project is to be carried out. The "owner" is the person or persons who own the land, defined in the Minister's approval, on which the approved project is to be carried out. The identity of the person or persons who own that land might change from time to time, but the category of "owner" never changes, but rather is fixed by reference to the ownership of the land defined in the Minister's approval as the land on which the approved project is to be carried out.
7. Fourthly, the applicant construes too narrowly what is involved in the carrying out of a project. The applicant has focused only on the carrying out of the physical works, such as the remediation works. The carrying out of the project in accordance with the Minister's approval, however, is not limited to the undertaking of physical works but includes any action required, expressly or impliedly, by the conditions of the approval or necessarily involved in the carrying out of the approved project. The conditions regulate how the project is to be carried out over the whole life of the project, including regulating the action required to be taken before commencing any remediation works, in undertaking the remediation works and after completing the remediation works. Post remediation activities include environmental monitoring and auditing and making publicly available the results of monitoring to keep the community informed. All of these activities before, during and after undertaking the remediation works involve the carrying out of the project.
8. The applicant is incorrect, therefore, in contending that, at the times of it making and the Court determining the modification application, the only part of the project that is to be carried out will be on the land still owned by the applicant on which it will to complete some earthworks, manage the containment cell and operate the water treatment plant. The Minister's approval continues to apply to land on which the applicant has completed remediation works and to regulate post remediation activities including environmental monitoring, notifying regulatory authorities of material changes in the conditions of the site or surrounding environment, providing information to the community and dealing with community complaints. The land on which the project is to be carried out continues to be the whole of the land on which the Minister approved the carrying out of the project.
9. I also reject the applicant's alternative argument that the development consent granted by the local council for subdivision of the land on which the Minister approved the carrying out of the project modified the Minister's approval so as to excise from the Minister's approval all subdivided land other than the land retained by the applicant. First, a later development consent can only modify an earlier development consent if a condition is imposed on the later development consent under s 80A(1)(b) and (5) (now s 4.17(1)(b) and (5)) of the EPA Act and action is taken to give effect to the condition by signing and delivering a notice of modification in accordance with the regulations (cl 97 of the Environmental Assessment and Planning Regulation 2000): see Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 at [25]-[26]. The applicant did not tender in evidence the development consents for subdivision of the land to establish whether they did have a condition purporting to require the modification of the Minister's approval or the required notification of modification to give effect to any such condition.
10. Secondly, the development consents granted by the council under Part 4 of the EPA Act could not modify the Minister's approval granted under Part 3A of the EPA Act. The power in s80A(1)(b) and (5) of the EPA Act to impose a condition on a development consent could only require the modification of "a consent granted under this Act". This consent is a development consent granted under Part 4 of the EPA Act (see definition of "development consent" in s 4(1)). It did not include an approval of the Minister under Part 3A of the EPA Act. Part 3A contained the only source of power to modify the Minister's approval under Part 3A (in s 75W). Hence, any condition of a development consent granted under Part 4 purporting to modify the Minister's approval under Part 3A would be legally ineffective.
11. The applicant has not established that the development consents granted by the council for the subdivision of the land modified the Minister's approval so as to remove the subdivided lots now owned by other persons. The subdivided lots remain part of the land on which the project approved by the Minister is to be carried out.

Conclusion and order

1. As I have determined that the consent of all of the owners of the land on which the Minister approved of the carrying out of the project is required under cl 8F(1) of Sch 4 of the Transitional Regulation 2017, but such consent has not been obtained, the Court has no power to approve the modification application. There is no utility in deciding whether any of the modifications requested in the modification application should be approved if there is no power to approve of any of the modifications. The appeal should be dismissed.
2. The Court orders that the appeal is dismissed.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2018