Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources

Land and Environment Court (NSW)|2005-05-04|Before: Lloyd J

Background 1 LLOYD J: On 20 October 2004, the applicant, Patrick Autocare Pty Limited ("Patrick Autocare") lodged a development application for the construction and operation of an intermodal cargo facility with the respondent, the Minister of the Department of Infrastructure, Planning and Natural Resources ("the Minister").

2 The proposed development is State significant development, and the respondent is the consent authority: Environmental Planning and Assessment Act 1979 (NSW), sub-ss 76A(7) and (9) ("the EP&A Act"). The respondent did not determine the development application within 60 days and the applicant has appealed against this deemed refusal.

3 In these proceedings, the applicant seeks the separate determination of two preliminary points of law: (1) Whether the matters identified in paragraph 1 of the respondent's Statement of Issues dated 28 February 2005 disclose any issue or matter that, pursuant to the EP&A Act , the Court, as the consent authority, is permitted to take into consideration; and (2) Whether the Court: (a) must determine; or (b) has power to defer making a determination of; the applicant's development application as proposed by the first issue in the respondent's Statement of Issues dated 28 February 2005. 4 Paragraph 1 of the respondent's Statement of Issues, relevantly states that, in determining the development application the Court, as consent authority, should not determine "Phases 2 and 3 of the proposed development" prior to:

(i) The finalisation of the Sydney Metropolitan Freight Strategy; and (ii) The determination of the Government's preferred options for container movements and intermodal terminal locations in the Sydney Metropolitan Area.

5 Ms S A Duggan, appearing for the respondent, conceded that the respondent does not contend that the Court should not determine the development application. The real question is whether the matters raised in par [4] above are irrelevant considerations. Applicant's Submissions

6 On behalf of the applicant, Mr S D Rares SC and Ms K C Morgan submit that the fact that the respondent is undertaking an investigation of preferred options for a possible Freight Strategy is not a relevant consideration for the Court to consider in determining the development application. This is said to find support in the following submissions:

(a) As a consent authority, the Court has the power and duty to determine the development application by either granting consent or refusing consent: the EP&A Act, s 80(1). In determining the development application, the Court has all the functions and discretions which the Minister had in respect of the development application and is to have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest: Land and Environment Court Act 1979 ("the Court Act"), s 39.

(b) Section 79C(1) of the EP&A Act sets out the matters which the consent authority must take into consideration. That section provides: In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and (iii) any development control plan, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. (c) The subject matter, scope and purpose of the EP&A Act and the Court Act require that the Court must make a decision on the basis of the most current material available to it, but that material cannot be incomplete, inaccurate or misleading: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 45.4 per Mason J. Further, that material must not include whatever material the Court could speculate may be looked at within a government department or agency with a view, one day in the uncertain future, to a policy decision coming into existence: Re Minister; Ex parte S 134/2002 (2002) 211 CLR 441 at 458-459 [33] - [40], especially at [40] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ.

(d) Section 79C(1)(a)(ii) indicates that the legislature requires consideration to be given to a draft environmental planning instrument in such a sufficiently advanced stage of formulation that it be placed on public exhibition and its details notified to the consent authority.

(e) The Court is not in a position, as consent authority, to consider material not before it, in this case being the development of a policy some time in the future. No such policy, or draft policy, is in evidence. None of the matters in paragraph 1 of the respondent's Statement of Issues is: (i) a policy; (ii) a draft policy; or (iii) an otherwise identifiable government policy. As such, the matters are not relevant considerations pursuant to s 79C(1) of the EP&A Act : Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195 at 209-219 [81] (per Mason P, Spigelman CJ and Ipp JA agreeing); Stockland Development Limited v Manly Council [2004] NSWLEC 472 at [88]-[92] per McClellan C. (f) Further, pursuant to s 79C(1)(e), it is not in the public interest for the Court, as consent authority, to have regard to indefinite, undefined assertions that a policy or strategy is being developed. The public interest is served by determining applications in accordance with the law and the actual existing policies or drafts referred to in s 79C(1).

(g) The Court must perform the function of deciding the development application independently of any instruction, advice or wish of the Executive Government: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18. Thus, the mere statement of the fact that such an investigation is occurring is without content and affords the Court, as an independent decision maker, no assistance in determining what it considers to be the correct or preferable decision: Wilson at 18. Respondent's Submissions 7 Ms S A Duggan, appearing for the respondent, relies on the following submissions to support the contention that the matters identified in paragraph 1 of the respondent's Statement of Issues dated 28 February 2005 are relevant considerations to which the Court must have regard when determining the development application:

(a) Section 79C sets out the matters that must be taken into consideration and should form the focal points of the determination (Zhang v Canterbury City Council (2001) 51 NSWLR 689 at 602 [75]), but does not mandate the only matters to be taken into consideration: Carstens v Pittwater Council (1999) 111 LGERA 1 at 12; BGP Properties Pty Limited v Lake Macquarie Council [2004] NSWLEC 399 at [100]. Therefore, matters other than those enumerated in s 79C may be considered in the determination of the development application.

(b) Section 79C(1)(e) requires the Court to take into account the "public interest" and this provides the Court with a wide, albeit not an unfettered, discretion: Zhang at 602; Terrace Tower Holdings at 209-210; Patra Holdings Pty Limited v Minister for Land and Water Conservation (2001) 119 LGERA 231.

(c) The discretion conferred in considering "public interest" pursuant to s 79C(1)(e) must include, at the very least, the achievement of the objects of the EP&A Act as provided in s 5 of that Act. Section 5 provides, in particular, that the objects of the Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment. (d) Therefore, provided that the consideration can be relevantly connected to one of the objects of the EP&A Act it cannot be said that the consideration is irrelevant to the determination of the development application.

(e) The considerations raised in paragraph 1 of the Statement of Issues relate to the following objects: (i) The orderly and economic development of land; (ii) The protection of the environment; (iii) The proper management of man made resources for the purposes of promoting social and economic welfare of the community and a better environment. (f) Further, the outcome of the investigations being undertaken have the potential to affect the assessment of the development application in the context of the proper planning for the State.

(g) The Court is not being asked to take into account something that does not exist. It is being asked to consider the fact that work is being done to develop a policy. The policy, being the product of such work, is a relevant consideration to be taken into account in administrative decision making (Ansett Transport Industries (Operations) Pty Limited v Commonwealth (1977) 138 CLR 54) and thus may assist the Court in determining the development application.

(h) The fact that the policy may not yet be completely formulated does not affect the relevance of the consideration. Section 79C(1)(a)(ii) of the EP&A Act makes is plain that the fact that a policy is necessary but yet unformulated is a relevant consideration. That section does not evince an intention to preclude all other forms of policy from the decision making process nor require that a policy had advanced to a certain stage prior to its relevance.

(i) The distinction is one as to the weight to be given to a particular policy rather than rendering it an irrelevant consideration: Stockland Development at 272-273. Thus, the policy is a relevant consideration. However, the extent that the policy may assist the Court is a question of weight to be determined by the Court.

(j) In addition, the Court must satisfy itself that the development is suitable for the particular site and an appropriate treatment of transport in the Sydney region: the EP&A Act, s 79C(1)(c). Where there is no relevant policy, the Court cannot be required to consider the application in a planning vacuum and should have regard to the broader planning context of the State including government policy regarding developments of this type. The Court's determination may have the consequence of affecting government policy or even dictating (or pre-empting) such policy and this would be inappropriate as it is an inherently administrative act foreign to the exercise of judicial power: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 to 268; Kable v Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51; Grollo v Palmer (1995) 184 CLR 348 at 365; Wilson at 16.

Conclusion 8 I find, for the reasons which follow and consistently with the submissions of Ms Duggan, that the fact that the State government is undertaking an investigation of preferred options for a possible metropolitan Freight Strategy and related matters are relevant considerations to the determination of the development application. 9 In determining which considerations are relevant to the determination of the development application, the Court must seek to give effect to the statutory purpose and legislative intention of the EP&A Act: Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 (CA), McHugh JA at 423. See Norcal Pty Limited v D'Amato (1988) 15 NSWLR 376 (CA); Metal Manufacturers Limited v Lewis (1988) 13 NSWLR 315 (CA), Kirby P at 319; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Brennan CJ at 372-375. 10 Further, the Court must adopt an approach which is consistent with the language and purpose of all the provisions of the EP&A Act and the substantive operation of the Act as a whole: Project Blue Sky at 381; Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449 per Isaacs and Rich JJ at 455; Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165, Mason P at 172. 11 It has been held that s 79C(1) sets out the matters that must be taken into consideration by a consent authority in determining a development application; but that does not exclude from consideration matters which are not listed in that section and which may be of relevance to the particular development application and which further the objects of the Act. Moreover, one of the considerations expressly mentioned in s 79C(1) is "(e) public interest". It is in the public interest in determining a development application that consideration be given to the objects of the Act: BGP Properties at [100]; Carstens at 25. 12 In the present case the proposed development is of significance to the State and has the capacity to affect the objects the Act. In particular, it may affect those objects described in sub-ss 5(a)(i), (ii), (iv) and 5(b), noted in par [7] above. Any investigations and potential policies which relate to those objects thus become relevant considerations in determining the development application.

13 The Court can only, of course, determine the appeal and the development application on the information available to it at the time of the hearing. It thus becomes a question of what weight should be given to the matters identified in par 1 of the respondent's Statement of Issues: Peko-Wallsend Limited at 41; Stockland Development Limited at 272-273. In determining what weight should be given to the question, the Court will, of course, be guided by the joint judgment in Wilson (at 17-18), namely, that the Court must determine the application independently of the wishes or advice of the Executive Government; and this is so even in those cases where government policy is a relevant factor for consideration.

14 The answer to the first question raised for separate determination, noted in par [3] above, must be "yes". As to the second question raised for determination, the powers of the Court are set out in s 80 of the EP&A Act. The Court, as consent authority, may either - (i) grant consent to the application for which consent is sought, either unconditionally or subject to conditions: the EP&A Act , sub-ss 80(1)(a) and 4(a); (ii) refuse consent to the application: the EP&A Act , sub-ss 80(1)(b); (iii) grant consent for the development for which consent is sought, except for a specified part or aspect of the development: the EP&A Act , sub-ss 80(4)(b); (iv) grant consent for a specified part or aspect of the development: EP&A Act , sub-ss 80(4)(c). 15 I have noted above that the respondent does not contend that the Court should not determine the development application.

Orders 16 The Court answers the separate questions as follows: (1) Whether the matters identified in paragraph 1 of the respondent's Statement of Issues dated 28 February 2005 disclose any issue or matter that, pursuant to the EP&A Act , the Court, as the consent authority, is permitted to take into consideration? Answer: Yes (2) Whether the Court: (a) must determine; or (b) has power to defer making a determination of; the applicant's development application as proposed by the first issue in the respondent's Statement of Issues dated 28 February 2005. Answer: Not necessary to answer in view of the concession made by the respondent, noted in par [15] of this judgment. I hereby certify that the preceding 16 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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.

CITATION : Patrick Autocare Pty Limited v The Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 277

Ansett Transport Industries (Operations) Pty Limited v Commonwealth (1977) 138 CLR 54; BGP Properties Pty Limited v Lake Macquarie Council [2004] NSWLEC 399; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Carstens v Pittwater Council (1999) 111 LGERA 1; Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165; Grollo v Palmer (1995) 184 CLR 348; Kable v Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51; Kingston v Keprose Pty Limited (1987) 11 NSWLR 404; Metal Manufacturers Limited v Lewis (1988) 13 NSWLR 315 (CA); CASES CITED: Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Norcal Pty Limited v D'Amato (1988) 15 NSWLR 376 (CA); Patra Holdings Pty Limited v Minister for Land and Water Conservation (2001) 119 LGERA 231; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Re Minister; Ex parte S 134/2002 (2002) 211 CLR 441; Stockland Development Limited v Manly Council [2004] NSWLEC 472; Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195 ; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; Zhang v Canterbury City Council (2001) 51 NSWLR 689

(2001) 119 LGERA 231

(2003) 129 LGERA 195

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