Pittwater Council v Minister for Planning & Anor

KEY ISSUES: Judicial Review :- upgrade and expansion of the existing marina - validity of the Minister's determination - State significant development - validity of the Minister's opinion - amended development proposal - not validly able to be determined by the Court

Environmental Planning and Assessment Act 1979 s 4(1); s 76A; s 80; s 97 Environmental Planning and Assessment Amendment (Infrastructure and other Planning Reform) Act 2005 Land and Environment Court Act 1979 s 39 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 reg 8J State Environmental Planning Policy (State Significant Development) 2005 cl 6; Sch 1 cl 14 State Environmental Planning Policy (Major Projects) 2005 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005 Environmental Planning and Assessment Amendment (Major Projects - Transitional Provisions) Regulation 2005

Aeropelican Air Services v Lake Macquarie City Council (2006) 153 LGERA 19; [2006] NSWCA 376 Alumino v Minister Administering the Environmental Planning and Assessment Act (1995) 88 LGERA 388 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 CASES CITED: Minister for Planning & Anor v Gales Holdings Pty Limited (2006) 146 LGERA 450 Nettheim v Minister for Planning and Local Government (1988) 16 ALD 796 Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467 Thompson v Randwick Corporation (1950) 81 CLR 87

DATES OF HEARING: 20 November 2007 & 21 November 2007

APPLICANT: N C Hutley SC and R P L Lancaster (barrister) SOLICITORS: Mallesons Stephen Jaques

FIRST RESPONDENT: S A Duggan (barrister) LEGAL REPRESENTATIVES: SOLICITORS: Legal Services Branch Department of Planning

SECOND RESPONDENT: M G Craig SC and M A Staunton (barrister) SOLICITORS: Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

• 23 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PITTWATER COUNCIL v MINISTER FOR PLANNING & ANOR [2008] NSWLEC 26

1 HIS HONOUR: This is a case about the development of a marina in Pittwater. It raises questions as to whether the applicant, Pittwater Council, or the first respondent, the Minister for Planning, was the relevant consent authority, the validity of determinations made by the Minister, and whether the Court has jurisdiction to determine an appeal brought in Class 1 of the Court's jurisdiction. It is necessary to set out in some detail both the factual history and the statutory framework to this case.

2 On 10 June 2005, Austral Monsoon Industries Pty Ltd ("Austral") lodged development application No. 104-6-2005 (the DA) with the Minister for Planning seeking consent for the upgrade and expansion of the Careel Bay Marina. The DA comprised two parts, referred to in the DA as Stages 1 and 2.

3 The works proposed to be carried out in Stage 1 comprise, among other things, demolition or dismantling of existing structures and the construction of boating facilities. The works proposed to be carried out in Stage 2 comprise: (a) the construction of a 37 berth floating marina including services berths. (b) relinquishing of 37 commercial swing moorings. (c) a 27m wide navigational channel. (d) provision of berthing for small craft. (e) relocation of the fuel storage and sewage and bilge pumpout facilities from the Stage 1 wharf onto the floating marina.

4 On 14 February 2006, the Minister formally purported to refuse the DA. On 2 February 2007, Austral commenced its appeal by an application in Class 1 of the Court's jurisdiction against the deemed refusal of consent by the Minister.

5 On 3 May 2007, the Minister signed a record in writing stating his opinion that the development the subject of the DA is State significant development for the purpose of s 76A(7)(a)(i) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") ("the Minister's opinion").

6 On 4 May 2007 the Court with the consent of the council and the Minister granted Austral leave to amend the DA ("amended DA"). The amendments include:

(a) a reduction in the number of floating marina berths to 24 so that the total number of berths included in the development is 31;

(e) removal of five commercial moorings under the control of the applicant and relocation of 20 private moorings not under the control of the applicant from the seagrass area to the southern end of the bay;

(f) an increase in the number of permanent car spaces;

(g) changes to the landscaping to reflect the changes to the proposed development.

7 On 26 October 2007, Pittwater Council commenced these proceedings seeking, inter alia, the following relief: (1) A declaration that the determination of the Minister for Planning made on 14 February 2006 was not "the determination of a consent authority" within the meaning of s 97 of the EP&A Act. (2) An order that the determination of the Minister made on 14 February 2006 be set aside. (3) A declaration that "Record of Minister's opinion for the purposes of cl 6 of the State Environmental Planning Policy (State Significant Development) 2005" made by the Minister and dated 3 May 2007 is invalid and of no effect. (4) An order that "Record of the Minister's opinion for the purposes of cl 6 of the State Environmental Planning Policy (State Significant Development) 2005" made by the Minister and dated 3 May 2007 be set aside.

8 The EP&A Act contains provisions regulating the carrying out of "development", which is defined in such a way as to include the use of land. Division 1 of Pt 4 of the EP&A Act comprises a three-fold classification of development - development that does not need consent (s 76), development that needs consent (s 76A) and development that is prohibited (s 76B).

9 From 1 July 1998 until they were repealed with effect from 1 August 2005, a number of subsections of s 76A of the EP&A Act dealt with what was called "State significant development". In particular, sub-ss (3), (7), (8) and (9) provided: (3) Two types of development that need consent Development that may not be carried out except with development consent comprises 2 types, namely: (a) local development (which includes complying development), and (b) State significant development. (7) State significant development State significant development is: (a) development: (i) that is declared by a State environmental planning policy or a regional environmental plan to be State significant development, and (ii) that may be carried out with development consent, or (b) particular development, or a particular class of development: (i) that, under an environmental planning instrument, may be carried out with development consent, and (ii) that, in the opinion of the Minister, is of State or regional environmental planning significance, and (iii) that is declared by the Minister, by notice in the Gazette, to be State significant development, or (c) development that is proposed to be carried out in accordance with a development application that the Minister has directed, under section 88A, to be referred to the Minister for determination, or (d) prohibited development in respect of which a direction by the Minister under section 89 is in force.

(8) If: (a) a project comprises development part of which is State significant development, all other development comprised in the project is taken to be State significant development, and (b) but for this provision, part of State significant development would be subject to Part 5, this Part applies to the exclusion of Part 5 and the development may be carried out with development consent, and (c) but for this provision, part of State significant development would be prohibited, the development may be carried out with development consent. (9) The Minister is the consent authority for State significant development. 10 During the relevant period s 4(1) of the EP&A Act provided: In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … State significant development has the meaning given by section 76A(7).

11 By publication in the New South Wales Government Gazette on 25 May 2005, State Environmental Planning Policy (State Significant Development) 2005 ("SEPP (SSD)") was notified. Clause 6 of SEPP (SDD) provided:

6 Identification of State significant development Development that, in the opinion of the Minister, is development of a kind: (a) described in Schedule 1 or 2, or (b) described in Schedule 3 as State significant development, is State significant development.

12 Clause 14 of Sch 1 of SEPP (SDD) provided: 14 Marina facilities (1) Development for the purpose of marinas or other related land or water shoreline facilities that moor, berth or store vessels (excluding dinghies and other small craft) at fixed or floating berths, at freestanding moorings, alongside jetties or pontoons, within dry storage stacks or on cradles in hardstand areas and that: (a) moor, berth or store more than 30 vessels in Sydney Harbour, Middle Harbour, North Harbour, Botany Bay, Port Hacking, Broken Bay or associated tidal waters, or (b) moor, berth or store more than 80 vessels in other waters, or (c) are located in environmentally sensitive areas of State significance,

but excluding any development that, in the opinion of the Minister, is only of local environmental planning significance. (2) A reference in this clause to the number of vessels moored, berthed or stored includes a reference (in the case of an existing facility) to the additional number of vessels moored, berthed or stored at the facility.

13 On 6 April 2001, by notice published in the New South Wales Government Gazette, the Minister for Urban Affairs and Planning made a declaration under s 76A(7) of the EP&A Act that marina development within the class set out in the schedule to that declaration was State significant development ("the Marina declaration").

14 The schedule to the Marina declaration includes marina development located in Sydney Harbour, North Harbour, Botany Bay, Port Hacking, Broken Bay, or any associated tidal waters that involves:

(a) the establishment of a new permanent boat storage facility on the waterway with support facilities on an adjoining area of land or waterway; or

(b) alterations or additions to an existing permanent boat storage facility on the waterway with support facilities on an adjoining area of land or waterway.

15 On 10 June 2005, by notice published in the New South Wales Government Gazette, the Minister for Infrastructure and Planning revoked the declarations set out in the schedule to that notice, including the Marina declaration.

16 Before the original DA was purported to be determined by the Minister, there was a series of statutory enactments in about mid 2005.

17 On 16 June 2005, the Environmental Planning and Assessment Amendment (Infrastructure and other Planning Reform) Act 2005 (the 2005 Amending Act) was assented to. The 2005 Amending Act introduced Pt 3A to the EP&A Act entitled "Major Infrastructure and Other Projects" and repealed provisions relating to State significant development, including ss 76A(7) and (8).

18 On 1 August 2005, parts of the 2005 Amending Act, including Pt 3A and the repeal of ss 76A(7) and (8) commenced. On the same day, an amendment to SEPP (SSD) commenced, which renamed it State Environmental Planning Policy (Major Projects) 2005, and generally replaced references to State significant development with references to projects to which Pt 3A of the EP&A Act applies.

19 Transitional provisions concerning the 2005 Amending Act were inserted into Sch 6 of the EP&A Act, and relevantly included cll 1, 87 and 89:

1 Savings and transitional regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: … Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

87 Savings and transitional regulations Regulations made under Part 1 of this Schedule have effect despite anything to the contrary in this Part.

89 State significant development matters (2) If a development application for State significant development is pending on the commencement of Part 3A of this Act, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to this Act by Schedule 1 to the 2005 Amending Act had not been made. (3) A reference in any Act or instrument to State significant development within the meaning of this Act is taken to be a reference to a project to which Part 3A of this Act applies.

20 Further transitional provisions were contained in the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005, published in the New South Wales Government Gazette on 29 July 2005 and commencing 1 August 2005. These included reg 8J(5): (5) If a development application is made after the commencement of Part 3A of the Act in respect of any development that, immediately before the commencement of Part 3A, was declared to be State significant development by notice in force under section 76A(7) of the Act, the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.

21 On 7 December 2005, the Environmental Planning and Assessment Amendment (Major Projects - Transitional Provisions) Regulation 2005 was gazetted and expressed to commence on the date of assent of the 2005 Amending Act, namely 16 June 2005. Schedule 1 added regs 8J(6), (7) and (8) to the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation"):

(6) Clause 89 of Part 17 to Schedule 6 to the Act extends to development applications pending on the commencement of Part 3A of the Act for development that was State significant development on the commencement of the State Environmental Planning Policy (State Significant Development) 2005. (7) If: (a) a development application was made before the commencement of Part 3A of the Act on the basis that the development was State significant development, and

(b) the Minister is required to form an opinion that the development is State significant development in order to determine the application on that basis (but the Minister had not, before that commencement, formed an opinion on the matter), the Minister may, after that commencement, form an opinion that the development was, at the time the application was made, State significant development. In that case, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made. (8) A development consent in force immediately before the commencement of Part 3A of the Act may be modified under section 75W of the Act as if the consent were an approval under that Part, but only if: (a) the consent was granted with respect to development that would be a project to which Part 3A of the Act applies but for the operation of clause 6(2)(a) of State Environmental Planning Policy (Major Projects) 2005, and (b) the Minister approves of the development consent being treated as an approval for the purposes of section 75W of the Act.

The development consent, if so modified, does not become an approval under Part 3A of the Act.

22 There are in substance three main issues before this Court. The first issue concerns the validity of the purported determination of the original DA by the Minister on 14 February 2006. The second issue, which relates to the appeal in Class 1 of the Court's jurisdiction, is whether the Court has jurisdiction to determine the amended DA. The third issue concerns the validity of the Minister's opinion dated 3 May 2007 that the proposed development is State significant development.

First issue: validity of the Minister's determination made on 14 February 2006

23 Mr N C Hutley SC and Mr R P L Lancaster, appearing for the council, contend that the decision of the Minister made on 14 February 2006 was not what it purported to be, namely, the determination of a consent authority within the meaning of ss 80 and 97 if the EP&A Act, and should be set aside. The council contends that the development the subject of the original DA was not State significant development, either at the time the DA was lodged or at the time the Minister purported to determine it.

24 On 14 February 2006, as noted in par [4] above, the Minister purported to determine the original DA. Mr M G Craig QC and Mr M A Staunton, appearing on behalf of Austral, acknowledge that the notice gazetted on 10 June 2005 revoked the declaration gazetted on 6 April 2001. Notwithstanding that revocation, Mr Craig submits that, as at 10 June 2005, SEPP (SSD) was in force and applied to development the subject of the original DA.

25 After referring to cl 6 and cl 14 of Sch 1 of SEPP (SSD), as set out in pars [11] and [12] above, Mr Craig submits that there can be no doubt that the original DA was capable of satisfying the criteria of cl 14 of Sch 1 subject to the formation of the requisite opinion by the Minister required by cl 6 of SEPP (SSD). Mr Craig relies on Minister for Planning & Anor v Gales Holdings Pty Limited (2006) 146 LGERA 450 to support his submission that the Minister is the consent authority for the development for the purposes of forming the requisite opinion.

26 It is clear, however, that as at 14 February 2006 when he purported to determine the original DA, there is no record of the Minister having formed the requisite opinion required by cl 6 of SEPP (SSD). The development the subject of the original DA was not, therefore, State significant development at the time that the Minister purported to determine it.

27 Mr Hutley has outlined the various mechanisms by which a development might attain the status of State significant development and submits that Austral's original DA was not, by any of those mechanisms, constituted as State significant development before the Minister purported to make the determination on 14 February 2006. Moreover, Mr Hutley correctly submits that the revocation of the 6 April 2001 declaration took effect on 10 June 2005 and had already taken place by the time Austral lodged the original DA.

28 I agree also - since it is clearly self-evident - with Mr Hutley's further submission that s 76A(7)(a)(i) of the EP&A Act was not satisfied because the Minister had not at any time before 14 February 2006 formed the opinion referred to in cl 6 of SEPP (SSD), as it applied to marina facilities described in cl 14 of Sch 1. Accordingly, on 14 February 2006, the original DA was not for State significant development and the Minister had no power under s 80 of the EP&A Act to determine the original DA. For these reasons, I find that the Minister's purported determination of the original DA is invalid and of no effect.

Second issue: jurisdiction to determine the amended DA

29 As noted above in par [6], Austral amended its original DA ("amended DA") on 4 May 2007. The council contends that the Class 1 proceedings are incompetent and the Class 1 application should be dismissed because the Court does not have jurisdiction to determine the amended DA.

30 On 4 May 2007, the Court made orders by consent of all parties, including the council, in the Class 1 proceedings that Austral be granted leave pursuant to reg 55 of the EP&A Regulation to amend the original DA. The effect of those orders, according to Austral, is that the Court exercising the function and discretions of the consent authority agreed to the amendment of the original DA, the effect of which is that the amended DA is now that DA for which consent is sought. Mr Craig submits that the amendments were made to respond to the issues identified by the Minister and the objectors (including the council) and to encourage the Court as consent authority to solicit a better outcome. The proposed development is said to have remained the same in all material respects except that the proposed scale of the development was reduced. As the amended DA is in fact an amendment of the original DA, Austral submits that the council's arguments that the original DA has been withdrawn and that the amended DA is a fresh application must fail. Austral submits that what the council is seeking is an order that the amended DA be unamended.

31 Mr Craig further submits that either the Minister for Planning or the Court is the consent authority in respect of the development the subject of the amended DA and that there is no utility in making the declarations and orders sought by the council as the parties will be in the same position before and after the relief is granted.

32 Mr Craig made further submissions on the exercise if the Court's discretion, stating that if the consequence of the council's submission is that the DA lodged by Austral on 10 June 2005 is no longer able to be determined, discretionary considerations militate against the making of any order. Austral alleges, inter alia, that the council has sat on its hands in raising the legal contentions that it now does while Austral has incurred considerable expense in seeking to prosecute and have determined what, on its face, was a valid development application and by the entity that claimed to be the appropriate consent authority. In the circumstances, Austral submits that it is appropriate to decline relief and allow the appeal to be determined on its merits.

33 The council contends, however, that even if the proceedings were validly commenced in this Court in respect of the original DA, the proceedings are now incompetent because the amended DA is an original DA, which the Court has no jurisdiction to entertain. In particular, the council relies upon the following contentions: the amended DA has not been the subject of any expression of opinion by the Minister that it is State significant development - the opinion dated 3 May 2007 was expressed in respect of the original DA, not the amended DA; the amended DA is not State significant development and is not capable of constituting State significant development as reg 8J(7) of EP&A Regulation does not have any savings effect in respect of the amended DA because the amended DA was not made before the commencement of Pt 3A of the Act and, in any event, the amended DA is not capable of being considered by the Minister to be development of a kind of a marina facility in cl 14(1)(a) of Sch 1 of SEPP(SSD) as the proposed development in the amended DA does not "moor, berth or store more than 30 vessels"; and, the amended DA has not been the subject of any determination by a consent authority.

34 I agree with the council's submissions. In particular, the opinion of the Minister that the proposed development is State significant development was an opinion related to the original DA and not an opinion which related to the development of reduced scale which was the subject of the amendment on 4 May 2007. For those reasons, I find that the Class 1 proceedings are incompetent and that the Court has no jurisdiction to determine the amended DA. The relevant consent authority was the council. No development application has been made to the council, and hence there has been no refusal (or deemed refusal) which could trigger a right of appeal to the Court.

Third issue: validity of the Minister's opinion dated 3 May 2007

35 Austral submits that it is not the end of the matter if I come to the conclusion that the Minister had not formed the requisite opinion required by cl 6 of SEPP (SSD) as at 14 February 2006, when the Minister purported to determine the original DA. Austral contends that it is necessary to determine whether the Minister's formation of an opinion of 3 May 2007 was valid, as even if the Minister's decision is set aside, Austral submits that it will still have a right of appeal pursuant to s 97 of the EP&A Act against the Minister's deemed refusal of the amended DA.

36 As noted above in par [5], on 3 May 2007, the Minister expressed an opinion that the proposed development was State significant development. The record of the Minister's opinion for the purposes of cl 6 of SEPP (SSD) states: I, the Minister for Planning, have formed the opinion that the development described in the Schedule below, is development of a kind that is described in Schedule 1 of the State Environmental Planning Policy (State Significant Development) 2005 - namely clause 14(a) "Development for the purpose of marinas or other related land or water shoreline facilities that moor, berth or store vessels (excluding dinghies and other small craft) at fixed or floating berths, at freestanding moorings, alongside jetties or pontoons, within dry storage stacks or on cradles in hardstand areas and that moor, berth or store more than 30 vessels in Sydney Harbour, Middle Harbour, North Harbour, Botany Bay, Port Hacking, Broken Bay or associated tidal water" - and is thus declared to be State Significant Development for the purpose of section 76A(7)(a)(i) of the Environmental Planning and Assessment Act 1979 .

Schedule The upgrade and expansion of the existing Careel Bay Marina, Avalon, as described in the document titled Careel Bay Marina Development, Environmental Impact Statement Volumes 1 and 2 , prepared by Paterson Britton and Partners Pty Ltd and dated June 2005, including: · partial demolition of the existing Careel Boat Service marina and construction of new marina buildings and structures; and · expansion of the marina to include 37 new floating berths to replace 37 existing swing moorings in Careel Bay.

37 The council contends that the Minister's opinion of that date is invalid and of no effect, for the following reasons.

38 Firstly, the council submits that the Minister failed to take into account a mandatory relevant consideration, namely whether he was of the opinion that the marina development described in the original DA was not "only of local environmental planning significance" within the meaning of cl 14(1) of SEPP (SSD). Relying on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, the council submits that cl 14(1) expressly requires such a consideration to be taken into account so that matter is a mandatory consideration. The council notes that that part of cl 14(1) is absent from the reproduction of cl 14(1) included in the briefing note, signed by the Minister on 3 May 2007, and there is no suggestion in the text of the briefing note that the matter was given proper attention or taken into account at all.

39 Secondly, the council submits that the Minister failed to ask himself the correct question, namely whether the marina development described in the original DA was excluded from the kind of development in cl 14(1) of SEPP (SSD) on the basis that it was "only of local environmental planning significance." The council also relies upon the absence from the briefing note of any consideration of that matter.

40 Thirdly, the Minister reached his opinion dated 3 May 2007 for a collateral purpose, namely a purported attempt to put the Court in a position to be empowered to consider and determine both Stage 1 and Stage 2 of the proposal and be empowered to consider the development proposal in its entirety and on its merits. That purpose, according to the council, was collateral of the proper purpose of considering whether the development was of a kind described in cl 14(1) of Sch 1 of SEPP (SSD), within the meaning of cl 6 of SEPP (SSD): Thompson v Randwick Corporation (1950) 81 CLR 87 at 105-107. Noting that an administrative decision might be held invalid for improper purpose of flaunting proceedings, so too, it was argued for the council, is it a collateral purpose to make an administrative decision to achieve the result that otherwise incompetent proceedings might be re-enlivened: Nettheim v Minister for Planning and Local Government (1988) 16 ALD 796 and Aeropelican Air Services v Lake Macquarie City Council (2006) 153 LGERA 19; [2006] NSWCA 376 at [99]. The council submits that it is an unmistakeable inference from the briefing note that the Minister had that collateral purpose.

41 Fourthly, it was submitted by the council that reg 8J(7) of the EP&A Regulation did not authorise the Minister to form the opinion recorded on 3 May 2007 because reg 8J(7)(b), noted in par [21] above, did not apply to the circumstances of this case, namely "the Minister is required to form an opinion that the development is State significant development". In this case, the council submits that the opinion to be formed by the Minister was the different opinion described in cl 6 of SEPP (SSD).

42 The council further submits that even if it be assumed that the Minister's opinion was validly formed and that the opinion was within the description of reg 8J(7) of the EP&A Regulation, the final sentence of reg 8J(7) does not apply in the circumstances of this case because (i) the application has not, since the formation of the opinion been determined by the Minister; and (ii) in any event, the development application that was the subject of the opinion was in substance withdrawn by Austral on 4 May 2007, the day after the Minister formed the opinion of 3 May 2007, when Austral sought and was granted leave to rely on an amended DA. Whatever its precise effect, the council submits that reg 8J of the EP&A Regulation does not, and does not purport to, retrospectively cause to be valid the Minister's purported determination under s 80 of the EP&A Act.

43 Fifthly, the Council submits that if these proceedings were not incompetent when commenced, the Minister was on 3 May 2007 functus officio in that the statutory power otherwise available to form the opinion under cl 6 of SEPP (SSD) was (after the commencement of the proceedings) a matter for the Court, pursuant to s 39 of the Land and Environment Court Act 1979 ("the L&EC Act), and not for the Minister.

44 The council submits that a consequence of the invalidity of the Minister's opinion of 3 May 2007 is that, even on the Minister's understanding of the legal position, the proposed development is not State significant development and is not validly able to be determined by the Minister or the Court.

45 Ms S A Duggan, appearing for the Minister, submits that the Minister does not rely upon the formation of the opinion made on 3 May 2007 that the development was State significant development to permit or validate what was done by the Minister in the Notice of Determination on 14 February 2006. Rather, the Minister relies upon the formation of the opinion, pursuant to reg 8J of the EP&A Regulation, as being an opinion which permits the future determination of the matter, be it either by the Minister or by the Court.

46 Ms Duggan notes that the formation of the opinion in cl 6 is required to identify development which is State significant development. Therefore, the Minister must determine if a particular development is of a kind referred to in the Schedule. The Minister relies upon Minister for Planning v Gales Holdings Pty Ltd (2006) 146 LGERA 450 at 463 to support the submission that if the opinion required by cl 6 is formed then by necessity the Minister has satisfied himself that the proposal meets the description provided for in the relevant schedule.

47 As to whether the Minister failed to form the appropriate opinion pursuant to cl 6 or alternatively failed to ask himself the correct question in forming that opinion, the Minister submits that the briefing note must be viewed in its entirety. There is also said to be no warrant in the words of the SEPP (SSD), its context or otherwise, that requires as a mandatory feature of the opinion formed under cl 6 for the positive determination as to local significance under the Schedule be made.

48 The Minister submits that the opinion referred to in reg 8J(7) is the same as the opinion required by cl 6 of SEPP (SSD): Gales Holdings at 462. According to Ms Duggan, the provisions of reg 8J(7) require that the opinion is necessary in order to permit the determination - not that the determination must be made at any particular time after the formation of such opinion.

49 With regard to the contention by council alleging incompetence of the appeal, the Minister submits that the formation of the opinion is not a prerequisite to a right of appeal. Once the application is lodged the Minister is the consent authority for the purposes of s 97 of the EP&A Act. Ms Duggan submits that such is made apparent by the fact that the Minister's decision is not required to be made prior to the lodgement of an application, yet appeal rights can crystallise prior to determination of such application.

50 Mr M G Craig QC, appearing for Austral, agrees generally with Ms Duggan's submissions for the Minister's dealing with the validity of the opinion formed and evidenced on 3 May 2007. Expressed differently, Austral submits that there is no logic to the contention made by the council having regard to the provisions of the SEPP (SSD) and its Schedule to require the expression of two independent opinions. Austral submits that the terms "State significant development" and "local environmental planning significance" are mutually exclusive. It is not possible, according to Austral, for a development to be State significant if it is only of local environmental planning significance and vice versa. When the Minister formed the opinion that the proposed development was State significant it was implicit in that opinion, according to Austral, that the development was not of local environmental significance.

51 Austral submits that reg 8J(7) of the EP&A Regulation is satisfied. It notes that the original DA was made to the Minister on 10 June 2005 - prior to the commencement of Pt 3A of the EP&A Act. Therefore, the first paragraph of cl 8J(7) is, according to Austral, satisfied. Clauses 6 and 14 of Sch 1 to SEPP (SSD) require the Minister to form an opinion that the development is State significant development. Austral submits that reg 8J(7) of the EP&A Regulation permits the Minister to form the requisite opinion after 1 August 2005, the commencement date of Pt 3A of the EP&A Act, that at the time the original DA was made on 10 June 2005 that the development proposed by the original DA was State significant development for the purposes of cl 6 of SEPP (SSD).

52 Austral submits that the second paragraph of reg 8J(7) of the EP&A Regulation had been satisfied and as at 3 May 2007, the original DA was the subject of an appeal to this Court pursuant to s 97 of the EP&A Act and had not been finally determined.

53 Ms Duggan made further submissions in response to the council's allegations that the Minister reached his opinion dated 3 May 2007 for a collateral purpose and that the Minister was on 3 May 2007 functus officio (the third and fifth grounds relied upon by the council). After referring to the briefing note, Ms Duggan submits that the opinion formed under cl 6 was not for the purposes contended for by the council. The Minister was forming the opinion under cl 6 for the purposes of determining whether or not a development which had been lodged as State significant development was State significant development. The Minister submits it is for the council, who made the allegation of collateral purpose (or improper purpose), to establish that absent the improper purpose the decision in its form would not have been made: Thompson v Randwick Corporation (1950) 81 CLR 87; Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467 at 468-469; Hardie Holdings v Department of Natural Resources (2007) 151 LGERA 373 at 379.

54 In relation to the functus officio contention, Ms Duggan submits that the Minister is only functus officio where he has spent the administrative powers conferred upon him to their fullest extent. With reference to s 39(2) of the L&EC Act, Ms Duggan submits that the decision of the Minister as to whether or not the development is State significant development is not a matter at the heart of the appeal such that it is a power which by virtue of the operation of s 39(2) to the Court on appeal: Alumino v Minister Administering the Environmental Planning and Assessment Act (1995) 88 LGERA 388. Accordingly, Ms Duggan submits that the Minister is not functus officio with respect to the formation of the opinion upon the lodgement of the appeal. That administrative function remains vested therefore in the Minister and the appeal to the Court does not alter that. The fact that the Court proceedings had been commenced, it is submitted, does not affect the Minister's powers to continue to exercise his administrative functions until such time as they are spent.

55 As to the validity of the Minister's opinion of 3 May 2007, I have come to the following conclusions.

56 I reject the council's first and second submissions, noted in pars [38] and [39] above. I agree with the submissions put forward by Austral that terms "State significant development" and "local environmental planning significance" are mutually exclusive, and a statement that development is of the former kind clearly excludes development of the latter kind. That is, if the proposed development is State significant development there is no need under cl 14, noted in par [12]) above, for there to be an express statement by the Minister that it is not "only of local environmental planning significance". Regulation 8J(7) of the EP&A Regulation is satisfied. I find that the Minister did form the requisite opinion on 3 May 2007, but, as noted above, the opinion only relates to the original DA and not the current (amended) DA for a development of reduced scale and which is the subject of the proceedings in Class 1 of the Court's jurisdiction. A reading of the Minister's opinion, which is set out in full in par [36] above, clearly shows that it is directed to the development described in the original DA and not the current DA.

57 There is no evidence to support the council's third submission, noted in par [40] above, of an improper or collateral purpose in reaching the opinion.

58 I accept that part of the council's fourth submission, noted in par [42] above, that the Minister's opinion only related to the original DA and not the current (amended) DA, since the current DA has not been considered by the Minister. This is plainly self-evident.

59 I do not accept the council's fifth submission, noted in par [43] above, that the Court can form or substitute its own opinion for that of the Minister pursuant to s 39 of the L&EC Act. Since no application for the development which is now sought has been made within the meaning og s 78A of the EP&A Act to the consent authority, the council, there has accordingly been no determination, or deemed determination by refusal within the meaning of s 82 of the EP&A Act, so that the right of appeal granted by s 97(1) of that Act does not at present exist. Accordingly, the Court has no jurisdiction to entertain the appeal that has been brought in class 1 of the Court's jurisdiction.

60 It is convenient to summarise my findings as follows:

(a) The purported determination by the Minister of the original DA on 14 February 2006 was not the determination of a consent authority within the meaning of s 97(1) of the EP&A Act and is of no effect. This is because the relevant consent authority at that time was not the Minister, but the council. (b) The Minister's opinion of 3 May 2007 is of no effect since it relates to the original DA and not the current (amended) DA upon which the applicant for consent now relies. (c) The Court does not have jurisdiction to determine the appeal which has been brought in Class 1 of the Court's jurisdiction. This is because no original DA for that development has been made to the relevant consent authority - the council - so that ss 82 and 97(1) of the EP&A Act have not been enlivened. (d) The Court's orders of 4 May 2007 granting leave to Austral to amend the original DA are of no effect. Again, this is because no right of appeal lay to the Court since no original DA had been made to the relevant consent authority - the council.

1. The applicant council is directed to bring in short minutes of declarations and/or orders which give effect to the Court's findings by arrangement with my associate.

2. The question of costs is reserved. I hereby certify that the preceding 61 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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