respondent. Appeal dismissed; appellant (Reysson Pty Ltd) ordered to pay the costs of the respondent.
Key principles
Section 6(1) of the Coastal Management Act 2016 (NSW) does not create an objective jurisdictional fact which conditions the Governor's power to make a State Environmental...
The characterisation and selection of land for inclusion in the coastal wetlands and littoral rainforests area is an evaluative, expertise-driven and policy-laden legislative...
A uniform proximity area (the 100 metre 'proximity area' buffer) adopted on a State‑wide map is a rational and proportionate legislative technique to serve the objects of the...
The Governor may make a SEPP by adopting, by reference, a map approved by the Minister; there was no statutory requirement that the Governor separately approve or form a...
Issues before the court
Whether s 6(1) of the Coastal Management Act 2016 (NSW) contains a jurisdictional fact preconditioning the Governor's power to identify land as...
Whether the 100 metre 'proximity area' mapped in the Coastal Management SEPP is reasonably appropriate and proportionate to the objects of the...
Plain English Summary
The Court of Appeal dismissed Reysson's challenge to the Coastal Management SEPP mapping of its Tweed Heads land. The court held that s 6(1) of the Coastal Management Act does not create an objective fact that a court must find before the Governor may validly map land as coastal wetlands or littoral rainforest; instead, identifying such land is an evaluative, expertise‑driven mapping exercise for the executive/legislative process. The court also held a uniform 100 metre proximity buffer on the State map is a rational and proportionate device to trigger development impact assessment, and the Governor need not separately approve the map the SEPP adopts by reference.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,736 words · generated 01/07/2026
What happened
Reysson Pty Ltd owned two adjoining lots at Tweed Heads South which were included within the Coastal Wetlands and Littoral Rainforests Area Map adopted by the State Environmental Planning Policy (Coastal Management) 2018 (the Coastal Management SEPP). Reysson sought declarations in the Land and Environment Court that the SEPP (or, alternatively, the map as adopted by it) was invalid in respect of its land. The primary judge (Pain J) dismissed the amended summons ([3]–[6]). Reysson then appealed to the NSW Court of Appeal. The Court of Appeal (Payne JA, Bell P and Gleeson JA agreeing) dismissed the appeal and ordered Reysson to pay the costs of the respondent ([1]–[3]; orders). The appeal raised three principal issues: (1) whether s 6(1) of the Coastal Management Act 2016 (NSW) created an objective jurisdictional fact that legally constrained the Governor's power to identify land as part of the coastal wetlands and littoral rainforests area; (2) whether the 100 metre 'proximity area' mapped on the State map was a lawful, rational and proportionate means of identifying 'land adjoining those features'; and (3) whether the Governor was required by law to have approved or considered the Coastal Wetlands and Littoral Rainforests Area Map before making the SEPP ([Headnote]; grounds summarised).
Whether the Governor, in making the Coastal Management SEPP, was required by law to have regard to, approve or otherwise do anything in relation to...
Cited legislation
4 cited instruments linked from this judgment.
Why the court decided this way
Central holding: s 6(1) does not create an objective jurisdictional fact. The court applied the established approach to jurisdictional fact questions: they are resolved by statutory construction, considering the statutory structure, the nature of the task, the inconvenience that would flow from treating the provision as jurisdictional, the drafting (presence or absence of subjective language), and the presence of procedural mechanisms such as consultation (see the Court's statement of approach at [2]–[4] and the list of relevant considerations at [3]).
Key reasons:
Structure and source of power: The power to make SEPPs is vested in the Governor under s 3.29 of the Environmental Planning and Assessment Act (EP&A Act), and the Coastal Management Act itself does not provide a separate source of power for making SEPPs. Section 6(1) describes what land may be described as coastal wetlands and littoral rainforests for the purposes of the Coastal Management Act, but is not drafted as a condition precedent restricting the Governor's power ([5]–[8]; see esp. paras at [100]–[106] and following analysis).
Nature of the task: Identifying coastal management areas requires evaluative judgements about hydrological and floristic characteristics, assessment of fact and degree and policy-driven boundary drawing. These are technical and contestable determinations ordinarily made in the administrative/legislative process (maps preparation and consultation) rather than by courts as objective findings of jurisdictional facts ([107]–[110]; [69]–[70]).
Inconvenience: The State-wide map comprises thousands of polygons. Making the validity of that legislative instrument depend on judicial re-assessment of the hydrological/floristic characteristics of each mapped area would impose substantial inconvenience and uncertainty; the legislation provided for time-limited and administrative processes which suggested Parliament did not intend judicial factual re-making of maps ([111]–[115], [76]).
Consultation: The EP&A Act's consultation power (s 3.30) is discretionary, but its inclusion is an indicium that contested issues are to be resolved through the SEPP preparation/consultation process rather than as objective jurisdictional facts for courts ([116]–[118]).
On proportionality, the court found the 100 metre proximity area to be a rational and proportionate legislative technique because it operates as a device to trigger further site-specific assessment of impacts rather than imposing an absolute rule ([106]; see also [160]). On the Governor/map issue, the court found nothing in the statutory scheme requiring the Governor to separately approve a map: the Governor may validly make a SEPP which adopts a Minister‑approved map; the relevant legal power is the making of the SEPP rather than a separate power to approve a map ([114]–[116]).
Before and after state of the law
Before:
The law recognised a set of authorities developing indicators for when statutory text creates a jurisdictional fact reviewable by courts (e.g. Corporation of the City of Enfield v Development Assessment Commission; Timbarra). The critical inquiry remained a matter of statutory construction: structure, the language used, the nature of the task and practical consequences.
After:
Reysson confirms that where Parliament enacts a legislative scheme requiring extensive technical mapping and leaves the identification process to the SEPP/administrative machinery, courts will be reluctant to treat descriptive statutory phrases (such as s 6(1)) as creating an objective jurisdictional fact. The decision reinforces that definitional/descriptive provisions specifying the kind of land a SEPP may identify are not necessarily preconditions that shift the task of factual determination from the executive to the judiciary, particularly where the exercise involves evaluative judgments and widespread mapping across a State.
The judgment also affirms the legitimacy of adopting maps by reference in SEPPs and the use of generic proximity buffers as lawful, proportionate planning techniques.
Key passages with plain-English translation
"[The critical question ...] was it an objective jurisdictional fact which must exist as a precondition ... ?" ([53]). Plain English: The court framed the central issue as whether the statute requires an objective, judicially ascertainable fact about the land before the Governor can lawfully map it as coastal wetlands or littoral rainforest.
"The structure of the legislation tends strongly against a conclusion that the fact relied upon by the appellant is a jurisdictional fact." ([66]). Plain English: Looking at how the statutes fit together, the court thought Parliament did not intend that courts be the ones to decide, in the first instance, whether land meets the technical description in s 6(1).
"Determining which land can and should be identified ... may, and frequently will, involve complex, contestable evaluative judgments." ([69]). Plain English: Deciding the boundaries and what to include is often a technical, contested, policy-laden decision that is suitable for experts and administrators, not a simple binary fact for judges.
"The technique of imposing a generic proximity area or buffer zone is both rational and proportionate ..." ([106]). Plain English: Using a standard buffer on a State map is a legitimate legislative shortcut which prompts closer, site‑specific scrutiny when development is proposed; it is not an unlawful overreach.
"The Governor's power ... does not carry with it an implication that the Governor must have a particular state of mind or satisfaction about the area being so identified." ([114]). Plain English: The Governor can make a SEPP adopting a map approved by the Minister; the law did not require the Governor to separately sign off on the map's technical contents.
What fact patterns trigger this precedent
This decision will be engaged where:
A SEPP or other environmental planning instrument maps land on a State-wide basis using technical criteria (e.g. vegetation, hydrology) and an owner challenges the instrument's validity on the ground that the mapped land does not objectively meet the statutory description.
A challenge alleges a statutory provision requires an objective jurisdictional fact (e.g. 'land which displays X characteristics') meaning the court must determine de novo whether the land actually displayed those characteristics at the time of instrument-making.
A challenge argues that a generic buffer/proximity area on a State map is disproportionate or otherwise invalid because it over‑identifies adjoining land.
A challenge asserts that the Governor (or other instrument-making authority) was required to take a specified procedural or evaluative step, such as separately approving or forming a satisfaction about a map adopted by reference.
The holding indicates that courts will scrutinise the statutory text and context, and where identification requires evaluative, technical, or policy judgments, the court will ordinarily treat the identification as for the legislative/administrative process rather than an objective jurisdictional fact.
How later courts have treated it
The judgment itself contains no post-decision treatment. As a Court of Appeal decision of New South Wales, Reysson is binding on lower courts in that jurisdiction and is persuasive authority for comparable issues of statutory construction about jurisdictional facts, map adoption and proportionality within the State planning context. Practitioners should, however, check subsequent authorities and any High Court treatment for further development beyond the state appellate level. The reasoning establishes clear indicators and a tested framework that lower courts will apply when faced with similar challenges to environmental planning instruments.
Still-open questions
Degree of deference at edges: The Court emphasised the evaluative nature of mapping and the impracticality of judicial re‑mapping. But where a SEPP is alleged to have adopted a map that is demonstrably arbitrary or made without any technical basis, the boundary between reviewability for legal error and deference to administrative mapping remains to be precisely delimited in future cases.
Role of consultation evidence: s 3.30 EP&A Act provides for consultation 'as the Minister considers appropriate or necessary'. The Court treated the consultation mechanism as an indicium that mapping is to be resolved administratively. A future case could test how little consultation is enough before a court would be willing to scrutinise an adopted map more closely.
Precision of 'adjoining' in particular contexts: The Court concluded that 'adjoining' was not constrained by s 6(1) and rejected the appellant's attempt to read tighter limits into that term. However, in more marginal geographical settings, e.g. isolated patches or where mapped proximity areas are very large relative to core features, future litigation could explore whether proportionality or other legal limits might require a more substantively justified buffer.
Interaction with species-protection or other environmental statutes: The Court declined to subsume 'naturalness' into s 6(1), but where another statutory regime (for example threatened species law) imposes technical tests, the interplay between SEPP mapping and overlapping environmental protections may produce novel review issues.
Practical takeaways for practitioners and compliance professionals:
Challenges grounded on the proposition that descriptive statutory phrases create objective jurisdictional facts will face significant hurdles where the legislative scheme contemplates technical, contested mapping across wide areas.
When advising clients about mapping and potential challenges to SEPPs, focus on (a) procedural defects in the SEPP-making process (where they exist), (b) clear legal errors in application of statutory power, and (c) site‑specific planning instruments (LEPs) which may offer more discrete grounds of challenge than State-wide instruments.
Where a map is adopted by a SEPP, attention should be paid to the administrative record, consultation steps taken, and the Minister's recommendation; however Reysson confirms the Governor is not required to separately approve or form a particular satisfaction about the map itself prior to making the SEPP.
Catchwords
[2000] HCA 5
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1[2019] NSWCA 147
Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216(2019) 372 ALR 695
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144[2018] NSWCA 69
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55[1999] NSWCA 8
Trives v Hornsby Shire Council (2015) 89 NSWLR 268[2015] NSWCA 158
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707
Judgment (28 paragraphs)
[1]
(Second Respondent)
Representation: Counsel:
T F Robertson SC with C D Norton (Appellant)
S J Free SC with M O'Brien (First Respondent)
Submitting Appearance (Second Respondent)
[2]
Solicitors:
Woolf Associates (Appellant)
Department of Planning, Industry and Environment (First and Second Respondents)
File Number(s): 2020/19031
Publication restriction: Nil.
Decision under appeal Court or tribunal: Land and Environment Court
Jurisdiction: Class 4
Citation: [2019] NSWLEC 203
Date of Decision: 23 December 2019
Before: Pain J
File Number(s): 2018/193677
[3]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[4]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant, Reysson Pty Ltd (Reysson), sought judicial review in the Land and Environment Court of the State Environmental Planning Policy (Coastal Management) 2018 (NSW) (Coastal Management SEPP) made by the Governor pursuant to the Environmental Planning and Assessment Act 1979 (NSW). Reysson challenged the validity of the mapping of an area identified as the "coastal wetlands and littoral rainforests area" in the Coastal Management SEPP as it related to the land owned by Reysson at Tweed Heads. The primary judge dismissed the claim.
There were three issues on appeal. The first issue was whether s 6(1) of the Coastal Management Act 2016 (NSW) contained a jurisdictional fact that preconditioned the exercise of the statutory power to identify land as being within the coastal wetlands and littoral rainforests area. The second issue was whether the 100 metre zone mapped as "proximity area" in the Coastal Management SEPP was reasonably appropriate and adapted to serving the objects of the Coastal Management Act and the Coastal Management SEPP. The third issue was whether the Governor in making the Coastal Management SEPP must have regard to or approve the Coastal Wetlands and Littoral Rainforests Area Map.
The Court held, dismissing the appeal:
Per Payne JA (Bell P and Gleeson JA agreeing):
The critical question at the heart of the first issue is: was it an objective jurisdictional fact which must exist as a precondition to the engagement of the statutory power that any land identified as coastal wetlands and littoral rainforests area must display the hydrological and floristic characteristics of "coastal wetlands" or "littoral rainforests", or adjoin such land?: [53].
Whether legislation creates jurisdictional fact of the kind to be objectively ascertained by the Court is a question of statutory construction: [54].
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8, applied.
The structure of the legislation tends strongly against a conclusion that the fact relied upon by the appellant is a jurisdictional fact: [66]. Determining which land can and should be identified as forming part of each of these areas may and frequently will involve complex, contestable evaluative judgments. It is improbable that the legislature intended that these provisions turn on objective jurisdictional facts: [67].
[5]
Judgment
BELL P: I agree with Payne JA whose clear and comprehensive reasons I have had the benefit of reading.
GLEESON JA: I agree with Payne JA.
PAYNE JA: This is an appeal from a decision of Pain J in the Land and Environment Court delivered on 23 December 2019: Reysson Pty Ltd v Minister Administering the Environment Planning and Assessment Act 1979 [2019] NSWLEC 203.
The primary judge dismissed the amended summons in which Reysson Pty Ltd (Reysson) sought judicial review of the State Environmental Planning Policy (Coastal Management) 2018 (NSW) (Coastal Management SEPP) made by the Governor pursuant to s 3.29 of the Environmental Planning and Assessment Act 1979 (NSW) (Environmental Planning and Assessment Act). The first respondent was the Minister Administering the Environmental Planning and Assessment Act 1979. The State of New South Wales was joined as the second respondent and filed a submitting appearance.
Reysson challenged the validity of the mapping of an area identified as the "coastal wetlands and littoral rainforests area" in the Coastal Management SEPP as it related to the land owned by Reysson at Tweed Heads, being Lot 2 in DP 1060215 and Lot 4 in DP 228424 (the Reysson Land). The "coastal wetlands and littoral rainforests area" is an area identified on the Coastal Wetlands and Littoral Rainforests Area Map (Coastal Wetlands and Littoral Rainforests Area Map) under the Coastal Management SEPP (cll 6(2) and 8 of the Coastal Management SEPP).
Reysson sought a declaration that the Coastal Management SEPP was invalid or, alternatively, was invalid to the extent that it applied to the Reysson Land. Further or alternatively, Reysson sought a declaration that the Coastal Management SEPP did not validly identify the "coastal wetlands and littoral rainforests area" for the purposes of the Coastal Management Act 2016 (NSW).
The primary judge rejected Reysson's claims. For the reasons that follow Reysson's appeal should be dismissed with costs.
[6]
Relevant facts
The Reysson Land is located on the NSW coast in Tweed Heads South. The Reysson Land is included in the Coastal Wetlands and Littoral Rainforests Area Map under the Coastal Management SEPP. The Reysson Land comprises Lot 2 in DP 1060215 and Lot 4 in DP 228424. Lot 2 is situated above Lot 4. Since the 1970s, extensive earthworks have been carried out on the Reysson Land involving the digging of stormwater channels on behalf of the Tweed Shire Council to provide stormwater drainage from remote subdivision sites through the Reysson Land out to the Tweed River and the construction of associated works such as levee banks and floodgates. Stormwater runoff is directed onto the Reysson Land from the nearby golf course to the north. A narrow area of Crown land divides Lot 2 in the western part of Lot 2. Part of Lot 4 is currently used as a banana plantation. The Reysson Land and its features can be seen in the following map:
As the legend makes clear, this map depicts the areas potentially affected by tides in the separate parcels of land. The separate parcels are enclosed by the red boundary. The parts marked in blue depict those parts of the Reysson land which have surface levels of less than .85 metres Australian Height Datum (AHD), which is a measure of mean sea level averaged from 1966 to 1968, and assigned the value of zero. Dr Martens and Dr Hazelton (engaged by Reysson) and Dr Sutherland (engaged by the first respondent) agreed in a joint experts report dated 24 July 2019 as follows:
"In this matter we agree on the following:
1. The High High-Water Solstices Springs (HHWSS) of 0.85 metres Australia Height Datum (mAHD) represents a reasonable limit to tides on this site." (Emphasis in original.)
As will become apparent, it is important in at least one respect to the present appeal that in the northern parcel of Reysson's land, numerous small patches of blue are shown indicating that the land contains many areas potentially affected by tides.
The Minister for Planning (the Minister) recommended the making of the Coastal Management SEPP to the Governor on 7 March 2018. The Governor signed the Coastal Management SEPP on 14 March 2018 and it was published in the Gazette on 23 March 2018. It commenced on 3 April 2018.
[7]
Environmental Planning and Assessment Act
Relevant sections of the Environmental Planning and Assessment Act concerning the making of an environmental planning instrument provide:
Part 3 Planning instruments
…
Division 3.2 Environmental planning instruments - general
3.13 Making of environmental planning instruments (cf previous s 24)
(1) Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act.
(2) Environmental planning instruments may be made -
(a) under Division 3.3 (called a State environmental planning policy or SEPP), or
(b) under Division 3.4 (called a local environmental plan or LEP).
…
Division 3.3 Environmental planning instruments - SEPPs
3.29 Governor may make environmental planning instruments (SEPPs) (cf previous s 37)
(1) The Governor may make environmental planning instruments for the purpose of environmental planning by the State. Any such instrument may be called a State environmental planning policy (or SEPP).
(2) Without limiting subsection (1), an environmental planning instrument may be made by the Governor to make provision with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance or of environmental planning significance to a district within the meaning of Division 3.1.
3.30 Consultation requirements (cf previous s 38)
(1) Before recommending the making of an environmental planning instrument by the Governor, the Minister is to take such steps, if any, as the Minister considers appropriate or necessary -
(a) to publicise an explanation of the intended effect of the proposed instrument, and
(b) to seek and consider submissions from the public on the matter.
(2) Before recommending the making of an environmental planning instrument by the Governor, the Minister must consult with the Greater Sydney Commission if -
(a) the proposed instrument relates to land within the Greater Sydney Region, and
(b) the Minister is of the opinion that the proposed instrument is likely to significantly affect the implementation of a strategic plan affecting that Region.
Note -
See also section 3.25.
[8]
Coastal Management Act 2016 (NSW)
The Coastal Management Act 2016 (NSW) and the Coastal Management SEPP came into force on 3 April 2018 and replaced the former statutory scheme comprising the Coastal Protection Act 1979 (NSW), State Environmental Planning Policy No 14 - Coastal Wetlands, State Environmental Planning Policy No 26 - Littoral Rainforests and State Environmental Planning Policy No 71 - Coastal Protection.
Relevant sections of the Coastal Management Act provide:
Part 1 Preliminary
…
3 Objects of this Act
The objects of this Act are to manage the coastal environment of New South Wales in a manner consistent with the principles of ecologically sustainable development for the social, cultural and economic well-being of the people of the State, and in particular -
(a) to protect and enhance natural coastal processes and coastal environmental values including natural character, scenic value, biological diversity and ecosystem integrity and resilience, and
(b) to support the social and cultural values of the coastal zone and maintain public access, amenity, use and safety, and
(c) to acknowledge Aboriginal peoples' spiritual, social, customary and economic use of the coastal zone, and
(d) to recognise the coastal zone as a vital economic zone and to support sustainable coastal economies, and
(e) to facilitate ecologically sustainable development in the coastal zone and promote sustainable land use planning decision-making, and
(f) to mitigate current and future risks from coastal hazards, taking into account the effects of climate change, and
(g) to recognise that the local and regional scale effects of coastal processes, and the inherently ambulatory and dynamic nature of the shoreline, may result in the loss of coastal land to the sea (including estuaries and other arms of the sea), and to manage coastal use and development accordingly, and
…
Part 2 Coastal zone and management objectives for coastal management areas
5 Coastal zone
In this Act, the coastal zone means the area of land comprised of the following coastal management areas -
(a) the coastal wetlands and littoral rainforests area,
(b) the coastal vulnerability area,
(c) the coastal environment area,
(d) the coastal use area.
6 Coastal wetlands and littoral rainforests area
(1) The coastal wetlands and littoral rainforests area means the land identified by a State environmental planning policy to be the coastal wetlands and littoral rainforests area for the purposes of this Act, being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features.
(2) The management objectives for the coastal wetlands and littoral rainforests area are as follows -
(a) to protect coastal wetlands and littoral rainforests in their natural state, including their biological diversity and ecosystem integrity,
(b) to promote the rehabilitation and restoration of degraded coastal wetlands and littoral rainforests,
(c) to improve the resilience of coastal wetlands and littoral rainforests to the impacts of climate change, including opportunities for migration,
(d) to support the social and cultural values of coastal wetlands and littoral rainforests,
(e) to promote the objectives of State policies and programs for wetlands or littoral rainforest management.
7 Coastal vulnerability area
(1) The coastal vulnerability area means the land identified by a State environmental planning policy to be the coastal vulnerability area for the purposes of this Act, being land subject to coastal hazards.
…
8 Coastal environment area
(1) The coastal environment area means the land identified by a State environmental planning policy to be the coastal environment area for the purposes of this Act, being land containing coastal features such as the coastal waters of the State, estuaries, coastal lakes, coastal lagoons and land adjoining those features, including headlands and rock platforms.
…
9 Coastal use area
(1) The coastal use area means the land identified by a State environmental planning policy to be the coastal use area for the purposes of this Act, being land adjacent to coastal waters, estuaries, coastal lakes and lagoons where development is or may be carried out (at present or in the future).
…
10 Matters relating to identification of coastal management areas
(1) LEPs may amend SEPPs to identify coastal management areas For the avoidance of doubt, a local environmental plan under the Environmental Planning and Assessment Act 1979 may amend a State environmental planning policy under that Act to identify a coastal management area (or part of such an area) for the purposes of this Act.
Note -
Division 4 (LEPs) of Part 3 (Environmental planning instruments) of the Environmental Planning and Assessment Act 1979 deals with the making of local environmental plans, including the preparation and submission of planning proposals for the making of local environmental plans by councils and other relevant planning authorities.
(2) Recommendation of Minister required A provision of an environmental planning instrument under the Environmental Planning and Assessment Act 1979 that identifies a coastal management area (or part of such an area) for the purposes of this Act must not be made without the recommendation of the Minister administering this Act.
(3) Hierarchy of management objectives if overlapping A single parcel of land may be identified by a State environmental planning policy as being within different coastal management areas. However, in such a case, if the management objectives of the areas are inconsistent, the management objectives of the highest of the following coastal management areas (set out highest to lowest) prevail to the extent of the inconsistency -
(a) the coastal wetlands and littoral rainforests area,
(b) the coastal vulnerability area,
(c) the coastal environment area,
(d) the coastal use area.
[9]
State Environmental Planning Policy (Coastal Management) 2018 (NSW)
Relevant clauses of the Coastal Management SEPP provide:
Part 1 Preliminary
…
3 Aim of Policy
The aim of this Policy is to promote an integrated and co-ordinated approach to land use planning in the coastal zone in a manner consistent with the objects of the Coastal Management Act 2016, including the management objectives for each coastal management area, by:
(a) managing development in the coastal zone and protecting the environmental assets of the coast, and
(b) establishing a framework for land use planning to guide decision-making in the coastal zone, and
(c) mapping the 4 coastal management areas that comprise the NSW coastal zone for the purpose of the definitions in the Coastal Management Act 2016.
4 Interpretation
(1) In this Policy -
…
Coastal Wetlands and Littoral Rainforests Area Map means the State Environmental Planning Policy (Coastal Management) 2018 Coastal Wetlands and Littoral Rainforests Area Map.
…
5 Land to which Policy applies
This Policy applies to land within the coastal zone.
6 Identification of coastal management areas
Note -
Section 5 of the Coastal Management Act 2016 provides that the coastal zone means the area of land comprised of the following coastal management areas -
(a) the coastal wetlands and littoral rainforests area,
(b) the coastal vulnerability area,
(c) the coastal environment area,
(d) the coastal use area.
(1) This clause identifies land for the purposes of the Coastal Management Act 2016 and this Policy.
(2) The coastal wetlands and littoral rainforests area is the land identified as such by the Coastal Wetlands and Littoral Rainforests Area Map.
Note -
The coastal wetlands and littoral rainforests area is made up of land identified as "coastal wetlands" or as "littoral rainforests" on the Coastal Wetlands and Littoral Rainforests Area Map. The land so identified includes land identified as "proximity area for coastal wetlands" and "proximity area for littoral rainforest".
(3) The coastal vulnerability area is the land identified as such by the Coastal Vulnerability Area Map.
(4) The coastal environment area is the land identified as such by the Coastal Environment Area Map.
(5) The coastal use area is the land identified as such by the Coastal Use Area Map.
…
8 Maps
(1) A reference in this Policy to a named map adopted by this Policy is a reference to a map by that name -
(a) approved by the Minister when the map is adopted, and
(b) as amended or replaced from time to time by maps declared by environmental planning instruments to amend or replace that map, and approved by the Minister when the instruments are made.
(2) Any 2 or more named maps may be combined into a single map. In that case, a reference in this Policy to any such named map is a reference to the relevant part or aspect of the single map.
(3) Any such maps are to be kept and made available for public access in accordance with arrangements approved by the Minister.
(4) For the purposes of this Policy, a map may be in, and may be kept and made available in, electronic or paper form, or both.
Note -
The maps adopted by this Policy are to be made available on the NSW Planning Portal.
…
Part 2 Development controls for coastal management areas
Division 1 Coastal wetlands and littoral rainforests area
10 Development on certain land within coastal wetlands and littoral rainforests area
(1) The following may be carried out on land identified as "coastal wetlands" or "littoral rainforest" on the Coastal Wetlands and Littoral Rainforests Area Map only with development consent:
(a) the clearing of native vegetation within the meaning of Part 5A of the Local Land Services Act 2013,
(b) the harm of marine vegetation within the meaning of Division 4 of Part 7 of the Fisheries Management Act 1994,
(c) the carrying out of any of the following -
(i) earthworks (including the depositing of material on land),
(ii) constructing a levee,
(iii) draining the land,
(iv) environmental protection works,
(d) any other development.
…
(2) Development for which consent is required by subclause (1), other than development for the purpose of environmental protection works, is declared to be designated development for the purposes of the Act.
(3) Despite subclause (1), development for the purpose of environmental protection works on land identified as "coastal wetlands" or "littoral rainforest" on the Coastal Wetlands and Littoral Rainforests Area Map may be carried out by or on behalf of a public authority without development consent if the development is identified in -
(a) the relevant certified coastal management program, or
(b) a plan of management prepared and adopted under Division 2 of Part 2 of Chapter 6 of the Local Government Act 1993, or
(c) a plan of management approved and in force under Division 6 of Part 5 of the Crown Lands Act 1989.
(4) A consent authority must not grant consent for development referred to in subclause (1) unless the consent authority is satisfied that sufficient measures have been, or will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland or littoral rainforest.
…
11 Development on land in proximity to coastal wetlands or littoral rainforest
Note -
The Coastal Wetlands and Littoral Rainforests Area Map identifies certain land that is inside the coastal wetlands and littoral rainforests area as "proximity area for coastal wetlands" or "proximity area for littoral rainforest" or both.
(1) Development consent must not be granted to development on land identified as "proximity area for coastal wetlands" or "proximity area for littoral rainforest" on the Coastal Wetlands and Littoral Rainforests Area Map unless the consent authority is satisfied that the proposed development will not significantly impact on -
(a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or
(b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.
(2) This clause does not apply to land that is identified as "coastal wetlands" or "littoral rainforest" on the Coastal Wetlands and Littoral Rainforests Area Map.
[10]
Grounds of appeal
There were 10 grounds of appeal advanced by Reysson:
"Appeal Grounds
1 Her Honour erred in failing to find that an essential characteristic of a wetland within s 6(1) of the Coastal Management Act 2016 (the CM Act) was that it was land that was wet (inundated with water) at least part of the time.
2 Her Honour erred in failing to find that an essential characteristic of a wetland within s 6(1) was land which was inundated by natural processes, as distinct from artificial ones such as impaired drainage.
3 Her Honour erred in failing to find that the term 'coastal wetlands' or 'land which displays the hydrological and floristic characteristics of coastal wetlands' in s 6(1) enjoyed a popular meaning in that it was an area of land that was inundated cyclically, intermittently or permanently with water and vegetated with wetland plant communities.
4 Her Honour erred in failing to find whether the term 'coastal wetlands' in s 6(1) was used in a technical sense, and if so whether it enjoyed the same meaning.
5 Her Honour erred in finding (at [96], [98]) that, in order to determine whether the description in s 6(1) was a jurisdictional fact, it was unnecessary to understand the meaning of the expression 'coastal wetland'.
6 Her Honour erred in not finding that, if coastal wetland was a distinct geographic feature with characteristics including that the land was cyclically, intermittently or permanently wet, it was more likely to be a jurisdictional fact because land which did not have those characteristics or which did not adjoin land with those characteristics could not have been identified as a Coastal Wetlands and Littoral Rainforest area (CWLR area) by a State Environmental Planning Policy (SEPP).
7 Her Honour erred in finding (at [126]) that s 6(1) does not specify a jurisdictional fact and therefore erred in finding (at [156]) that the expert evidence adduced by the appellant was irrelevant.
8 Her Honour erred in finding at [130]) that the total area of the Reysson land fits the description in s 6(1), because:
(a) she erred in finding (at [129]) that the Coastal Wetlands and Littoral Rainforest Area Map (the Map) did not differentiate between those parts of the mapped land that exhibit the hydrological and floristic characteristics of coastal wetlands (for the relevant characteristics), and those parts of the land that 'adjoin' those features;
(b) she erred in finding (at [129]) that s 6(1) does not require separate identification of land that exhibits the relevant characteristics and those parts of the land that adjoins those features;
(c) she erred in finding (at [130]) that all areas marked as 'proximity areas for coastal wetlands' on the Map are contiguous with those areas of the land accepted by the appellant as displaying the relevant characteristics;
(d) she erred in finding (at [130]) that s 6(1) did not confine the extent to which land might 'adjoin' land which displays the relevant characteristics for the purposes of applying that section.
9 Her Honour erred in failing to find (particularly at [160]) that the designation of parts of the Reysson land within the CWLR area is not reasonably and appropriately adapted to achieving the objects and aims of the CM Act and State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP), because:
(a) she should have found that the additional mapping of land 'adjoining' land with the relevant characteristics referred to in s 6(1) within the CWLR area must be directly related and proportionate to the protection of the areas with those characteristics; and
(b) she incorrectly failed to consider the expert evidence adduced by the appellant on this point and incorrectly found (at [156]) that the evidence was irrelevant.
10 Her Honour erred in failing to find (particularly at [190]) that the CM SEPP was invalid because the Map was not made or approved by the Governor or was not before the Governor at the time he determined to make the CM SEPP, because:
(a) s 6(1) confers the power upon the Governor to identify the CWLR area;
(b) the only identification of the area was by the Map;
(c) the Map was approved by the Minister, not the Governor (at [163]); and
(d) the CWLR Map was not before the Governor when he determined to make the CM SEPP."
[11]
Grounds 1-8: interpretation of s 6(1) of the Coastal Management Act
These grounds turn on the issue of whether, as the appellant submitted, s 6(1) of the Coastal Management Act contains a jurisdictional fact that preconditioned the exercise of the statutory power to identify land as being within the coastal wetlands and littoral rainforests area. The primary judge held that s 6(1) of the Coastal Management Act did not contain a jurisdictional fact. Ground 7 challenged that finding. Grounds 1-6 challenge the reasoning process adopted by the primary judge in arriving at that finding. Ground 8 challenges a further application of that finding.
The appellant submitted that the power to identify land as being within the coastal wetlands and littoral rainforests area in a SEPP for the purposes of the Coastal Management Act extends only to land which meets the statutory description in s 6(1) of the Coastal Management Act; and there is no power to include land within that area if it does not meet that description. If this is so, the issue of whether or not the parts of the Reysson Land mapped within the coastal wetlands and littoral rainforests area met the statutory description was an issue of fact which the Court below should have determined de novo, and by reference to the expert evidence led by the parties.
Section 6(1) of the Coastal Management Act is set out at [14] above. The appellant submitted that the relevant statutory description which the land must meet in order for it to be within power to identify it as within the coastal wetlands and littoral rainforests area is that the land:
1. displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforest; or
2. is land adjoining land with those features.
[12]
Grounds 1-6: no consideration of the meaning of "coastal wetland"
The appellant submitted that the primary judge's analysis commenced by declining to give meaning to the expression "coastal wetland" which is not defined in the Coastal Management Act. This forms the basis of appeal grounds 1-6. Relevantly, the primary judge said:
"Structure of statutory scheme
[96] I note that on the basis that the CM Act, CM SEPP and the EPA Act have no definition of 'coastal wetlands', Reysson made lengthy submissions in relation to definitions of 'wetland' in other legislation, policy documents and scientific papers, as summarised above in [54]-[67]. Apart from attempting to set the scene for its expert evidence which focussed on the need for wetlands to have some periodic inundation with water expressed on the surface at some stage(s), that material has little relevance to the statutory construction task I am about to embark on in relation to jurisdictional fact. Reysson did not tie in these submissions with its arguments on jurisdictional fact in a way that was clear to me. It submitted that it was obvious that much of the Reysson land was dry and could not be wetland given the definitions relied on and given its expert evidence. That submission does not assist in the statutory construction task I undertake below.
[97] That there is no definition of 'coastal wetlands' in those instruments does not necessarily mean that definitions in other legislation must be considered. The usual statutory construction approach is that they would not, as the Minister submitted. While Reysson sought to rely on the in pari materia principle, as applied in Hunters' Hill and ICI, there is no obvious basis for doing so in this case.
[98] Turning to the issue of jurisdictional fact, which does not require me to form a view about the definition of coastal wetlands, as identified in Enfield by the High Court at [28] the term 'jurisdictional fact' is used to identify a criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. In Dungog the Court of Appeal at [182]-[185] identified that the issue required consideration of the structure of an Act (there the POEO Act) and whether the provisions separated out preconditions to the exercise of power to grant a licence from circumstances governing the exercise of the power. The Court of Appeal observed that (at [184]):
[t]he mere fact that a particular criterion involves an element of evaluative judgment (where not stated to depend upon the opinion formed by the repository of the power) will rarely be determinative: few powers are dependent upon circumstances that do not involve some element of judgment. For the purposes of the law, facts do not exist in the abstract: someone must form an opinion as to whether or not they exist. …" (Emphasis added.)
[13]
Ground 7: Does s 6(1) of the Coastal Management Act specify a jurisdictional fact?
Ground 7 of the notice of appeal challenges the primary judge's conclusion that s 6(1) of the Coastal Management Act does not specify a jurisdictional fact.
The primary judge said:
"[100] Firstly, the decision to make the CM SEPP resides in the Governor. Section 3.29 of the EPA Act is the source of the Governor's power to make a SEPP. The power of the Governor is conditional on the advice of the Executive Council: Interpretation Act s 14. A SEPP made by the Governor must be for the purpose of environmental planning by the State: EPA Act s 3.29(1) and confirmed in Huntlee at [95]. A SEPP may be made by the Governor with respect to '... any matter that, in the opinion of the Minister, is of State or regional environmental planning significance or of environmental planning significance to a district ...': EPA Act s 3.29(2). As the Minister submitted it would be unusual for an instrument made by the Governor to be liable to be set aside because it contained a jurisdictional fact.
[101] Reysson submitted in reply that the CM Act provisions in ss 6-9 are limits on the general SEPP-making power of the Governor under s 3.29 of the EPA Act suggesting that these are likely to be jurisdictional. The wide power to make a SEPP under s 3.29 is modified by ss 6-9 of the CM Act in that certain areas are specified in the CM Act as matters which are to be identified in a SEPP.
[102] Reysson also submitted the matters specified in ss 6-9 of the CM Act were not expressed as matters of importance for environment and planning in NSW, a criteria for making a SEPP. Contrary to what I understood to be Reysson's submission, s 3.29(1) and (2) do not require that words such as 'State or regional environmental planning significance' or similar be stated expressly in a SEPP. The briefing note signed by the Minister on 7 March 2018 asked him to form the opinion that the CM SEPP concerned a matter of State and regional significance as set out at [16] above. In these circumstances there is no relevant limit on the Governor's power to make a SEPP in my view. I agree with the Minister that to have the Governor's decision to approve the CM SEPP reviewable as containing a jurisdictional fact is unlikely to be intended by the drafter.
[103] Secondly, the identification of land as having the relevant hydrological and floristic characteristics as required in s 6(1) of the CM Act is not a finding on which the exercise of power is conditioned in the CM Act. Rather it specifies a factor to be adjudicated upon in the course of exercising power. As the Minister submitted it is a definitional provision. That Reysson submitted the power was exercised in two steps, one of identifying the land with the relevant characteristics and, secondly, deciding what land so identified should be included on the Area Map, does not change the process from being central to the exercise of power. I agree with the Minister that the first step is not ancillary or extrinsic to the statutory identification task required by s 6(1). That some evaluation is necessary as Dungog recognised does not undermine my conclusion given the form of s 6(1). As the Minister stated this is the heart of the legislative exercise, suggesting it is unlikely this would be a question the Court would answer. By way of contrast, s 10(2) of the CM Act expressly restricts the power to make a SEPP identifying a coastal management area by requiring that there must be a recommendation of the Minister Administering the CM Act before that area can be identified, thereby specifying a pre-condition to the exercise of power. Section 6(1) does not identify an extrinsic or ancillary or essential preliminary matter, the existence of which in a statute authorities have identified as more likely to give rise to an objective jurisdictional fact.
[104] Thirdly, s 6(1) of the CM Act is expressed in the present tense. As the Minister submitted, if Reysson's construction of s 6(1) is correct, the Court must consider the characteristics of the land as at the date the instrument was made, rather than the date the Court comes to consider the evidence. In making this assessment the Court is likely to be at a disadvantage as compared with the original decision-maker due to the difficulty in ascertaining what the characteristics of the land were in the past. Reysson's submission that a statutory time bar to the commencement of proceedings means the Court would not be determining the jurisdictional fact matters very long after the original decision may or may not eventuate in practice. Additionally, the use of the present tense underscores the importance of the application of expertise in determining the matters in s 6(1), the fourth factor identified in Pilots Association.
[105] Fourthly, ss 7, 8 and 9 of the CM Act also do not give rise to jurisdictional facts. The NSW coastal zone consists of four areas, as provided in s 5 of the CM Act, and as identified in ss 6, 7, 8 and 9. The other areas of the coastal zone are identified in a similar legislative scheme to s 6. Section 7 of the CM Act concerns 'the land identified by a [SEPP] to be the coastal vulnerability area ... being land subject to coastal hazards'. That is the only category of mapping yet to be created under the CM SEPP. Section 8 concerns the coastal environment area which is defined in s 8(1) to be land identified in a SEPP which contains specified coastal features such as estuaries, coastal lakes inter alia and land adjoining those features. Section 9, the coastal use area, is land identified in a SEPP adjacent to coastal waters, estuaries, coastal lakes and lagoons where development is or may be carried out in the future. Reysson accepted that s 9 requires a value judgment about what might occur in the future in a particular location adjoining the coast and that was unlikely to be a jurisdictional fact a court could decide.
[106] While Reysson submitted that ss 7 and 8 identified jurisdictional facts, a similar analysis to that for s 6(1) suggests they are not. They are not expressed as pre-conditions which must be satisfied before power can be exercised. They require judgment on complex matters and expertise in arriving at the identification of relevant land satisfying the statutory description in the CM Act. There is no relevant distinction between identifying suitable land and choosing how much to include in a specified area of the coastal zone. As the Minister submitted given the similarity in drafting in the sections, they are likely to be of similar character."
[14]
Ground 8: Does the Reysson land fit the description in s 6(1)?
As to whether the Reysson land fitted within the description in s 6(1) of the Coastal Management Act, the appellant submitted that primary judge's analysis contains the following errors:
1. the primary judge incorrectly found at [129] that the Coastal Wetlands and Littoral Rainforests Area Map did not differentiate between those parts of the land that exhibit the relevant characteristics of wetlands, and those parts of the land which "adjoin" these features;
2. a comparison of the area of the Reysson land agreed by Reysson to display the relevant characteristics, and the proximity areas for coastal wetlands, demonstrates that there is no factual basis on the evidence for the finding at [130] that the areas marked as proximity areas were contiguous with the areas displaying the relevant characteristics; and
3. the primary judge's analysis was fatally flawed by her Honour's finding at [130] that "how far the adjoining land extends is unconfined by s 6(1)". The appellant submits that the primary judge made no attempt to give meaning to the word "adjoin" or to provide reasons for finding that "how far adjoining land extends is unconfined". The word "adjoins" of necessity contains a limitation. The appellant submits that in the present case, to determine the amount of proximity that land would require to the land possessing the characteristics of a coastal wetland to meet the description in s 6(1) of "adjoining" such land, it is appropriate to give the word meaning having regard to the purpose of the legislation and the geographic context in which it arises. It was for that reason that Reysson sought to lead expert evidence below.
At [129]-[130] the primary judge found:
"[129] As the Minister submitted, the mapping of an area as 'coastal wetlands' under the CM SEPP comprises areas on the Area Map of 'coastal wetlands' and 'proximity area for coastal wetlands'. These areas do not differentiate between those parts of the land that exhibit the relevant hydrological and floristic characteristics and those parts of the land that 'adjoin' those features. This is consistent with s 6(1) of the CM Act which does not require separate identification of such areas but contemplates that both types of area will be identified simply as CWLR area. Reysson bears the onus of showing that the area of the Reysson land marked on the Area Map as 'coastal wetlands' is neither land displaying the hydrological and floristic characteristics of coastal wetlands nor land 'adjoining' those features. If the Court concludes that the mapped land is in fact either land that displays the requisite characteristics or land which adjoins such land, then the validity of the CM SEPP should be upheld.
[130] Reysson accepted that part of the land does display the relevant characteristics of coastal wetlands. Consequently all the areas marked as 'proximity areas for coastal wetlands' are contiguous with those areas accepted to display the relevant characteristics. Adjoining land includes areas contiguous with the coastal wetlands area as well as land identified as in 'proximity area for coastal wetlands'. How far adjoining land extends is unconfined by s 6(1). The total area of the Reysson land fits the description in s 6(1) of the CM Act."
[15]
Consideration of grounds 1-8
The critical question at the heart of grounds 1 to 8 of this appeal is whether s 6(1) of the Coastal Management Act on its proper construction imposes a jurisdictional precondition to the exercise of the power to map any land as part of the coastal wetlands and littoral rainforests area. Put another way, was it an objective jurisdictional fact which must exist as a precondition to the engagement of the statutory power that any land identified as coastal wetlands and littoral rainforests area must display the hydrological and floristic characteristics of "coastal wetlands" or "littoral rainforests", or adjoin such land? Resolution of that question is dispositive of much of the appeal.
Whether legislation creates a jurisdictional fact of the kind to be objectively ascertained by the Court is a question of statutory construction: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5; Timbarra per Spigelman CJ (with whom Mason P and Meagher JA agreed) at [39].
I have concluded that on the proper construction of the Environmental Planning and Assessment Act and the Coastal Management Act, the power of the Governor to make the Coastal Management SEPP is not conditioned upon the existence of the jurisdictional fact identified by the appellant. It is not part of the Court's role to determine for itself whether land falling within the Coastal Wetlands and Littoral Rainforests Area Map displays the requisite "floristic and hydrological characteristics" of "coastal wetlands" or "littoral rainforests" or adjoins land which does.
This Court has on a number of occasions identified the considerations bearing on the correct identification of a jurisdictional fact: Timbarra; Pallas Newco; Hunter lndustriaI Rental Equipment; Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695. In the present case the following were of particular relevance:
1. the structure of the legislation. The relevant question is whether the structure of the legislation points to identification of "coastal wetlands" or "littoral rainforests" as an essential precondition to the engagement of the statutory power. Alternatively, does the structure of the legislation point to a conclusion that the question of whether land is or adjoins "coastal wetlands" or "littoral rainforests" is better understood as identifying facts "to be adjudicated upon in the course of the inquiry": Pallas Newco at [46]; Timbarra at [52]; Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443;
2. the nature of the task to be performed. If the resolution of the relevant matter said to be a jurisdictional fact is a straightforward one lending itself readily to objective resolution, it is more likely to be an objective jurisdictional fact. By contrast, the opposite conclusion is likely if the task is:
1. a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10;
2. one involving an "evaluative judgment": Muswellbrook Shire Council per Basten JA at [31] (with whom Leeming JA agreed at [203]);
3. one raising "issues of fact and degree": Pallas Newco per Spigelman CJ at [56]; or
4. one where "assessment and value judgments" need to be made: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 per French CJ at [57].
[16]
Structure of the legislation tends against characterisation as a jurisdictional fact
A SEPP is a type of environmental planning instrument made under Part 3 of the Environmental Planning and Assessment Act. An environmental planning instrument may be made in accordance with Part 3 for the purposes of achieving any of the objects of the Environmental Planning and Assessment Act: s 3.13. An environmental planning instrument may make provision for or with respect to any of the matters set out in s 3.14 of the Environmental Planning and Assessment Act. Section 3.29(1) provides (and provided at the time of the making of the Coastal Management SEPP) the source of the Governor's power to make the Coastal Management SEPP:
3.29 Governor may make environmental planning instruments (SEPPs)
(cf previous s 37)
(1) The Governor may make environmental planning instruments for the purpose of environmental planning by the State. Any such instrument may be called a State environmental planning policy (or SEPP).
(2) Without limiting subsection (1), an environmental planning instrument may be made by the Governor to make provision with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance or of environmental planning significance to a district within the meaning of Division 3.1.
In the present case, the unchallenged finding of the primary judge was that the Executive Council did advise the Governor to make the Coastal Management SEPP. Even though the Coastal Management SEPP identifies land for the purposes of the Coastal Management Act, s 3.29 was and remains the relevant source of power to make the Coastal Management SEPP.
The Coastal Management Act does not provide a separate or additional source of power for the making of the Coastal Management SEPP. It is correct, however, that the Coastal Management Act contemplates that a SEPP may be made which will have specific consequences for the purposes of the Coastal Management Act, including by identifying and classifying relevant areas in particular ways.
The Coastal Management Act regulates, in various ways, the "coastal zone". The coastal zone is comprised of four coastal management areas: s 5. One of those areas is the "coastal wetlands and littoral rainforests area". Section 6(1), set out at [14] above, contains a definition of that phrase.
[17]
Nature of the task tends against characterisation as a jurisdictional fact
Whether it is appropriate for land to be identified as part of a "coastal wetlands and littoral rainforests area" involves a careful assessment of complex facts and the formation of opinions and value judgments about a range of matters:
1. first, there is an evaluative process of determining what the "hydrological and floristic characteristics" of coastal wetlands and littoral rainforests are. If the legislature had intended that the identity of "coastal wetlands" and "littoral rainforests" would create a test to be applied by the courts, it would have provided a definition of those characteristics;
2. secondly, there is an evaluative process of determining whether "hydrological and floristic characteristics" of coastal wetlands and littoral rainforests are in fact displayed;
3. thirdly, there is an evaluative process of selection. The Coastal Management Act does not contemplate or require that all land having the requisite characteristics will be identified as "coastal wetlands and littoral rainforests". Value judgments must be made in determining whether land found to display the requisite characteristics should be identified as part of a "coastal wetlands and littoral rainforests area".
Identifying what land should be identified as forming part of "a coastal wetlands and littoral rainforests area" on the basis that it is land "adjoining" land enjoying the relevant features also involves additional difficult evaluative judgments. The choice about what land should be treated as "adjoining" such features may involve a policy choice; how narrowly or broadly the boundaries should be drawn in identifying "adjoining land". I have concluded that the legislature did not intend that a court would make policy judgments of this kind and draw the boundaries of the Coastal Wetlands and Littoral Rainforests Area Map.
The process of identifying the presence of land with the requisite characteristics and the process of deciding where to draw the boundaries relative to such areas are closely intertwined. The legislature did not intend that the validity of the resulting map depend upon a judicial re-examination of the objective correctness of the first step.
The issues debated before the primary judge demonstrate the considerable scope for debate and disagreement about the relevant hydrological and floristic characteristics of "coastal wetlands" and "littoral rainforests" and how those hydrological and floristic characteristics should be recognised at any given site. I accept the Minster's submission that the process is complex and contestable. The scale and nature of the judgment to be exercised makes it unlikely that the legislature intended that the validity of the Coastal Management SEPP should depend upon a court making an objective assessment about the characteristics of the land being mapped. Although the present case focused on the Coastal Wetlands and Littoral Rainforests Area Map as it applied to the Reysson Land, the Coastal Wetlands and Littoral Rainforests Area Map applies to the entire coastal region of NSW.
[18]
Inconvenience tends against characterisation as a jurisdictional fact
It is clear from the 5,832 polygons comprising the Coastal Wetlands and Littoral Rainforests Area Map covering the whole of the NSW coast that considerable inconvenience may be occasioned if the validity of the mapping incorporated in the Coastal Management SEPP turned on a subsequent judicial determination about the accuracy of the relevant hydrological and floristic characteristics of the land.
While it is correct, as the appellant submitted, that there is a three-month time limit on the commencement of proceedings, the actual process for determining the validity of inclusion of land in a map will inevitably take considerably longer. In the present case, for example, the parties are still debating the validity of an instrument that was made in April 2018. In the interim, no doubt vast numbers of people and enterprises have proceeded to act in reliance on the Coastal Management SEPP, which is an environmental planning instrument of general application. While the extent of any orders invalidating parts of the Coastal Management SEPP may be confined, the validity of a legislative instrument being subject to such uncertainty is obviously highly undesirable. It is unlikely the legislature intended such uncertainty.
[19]
Provision for consultation tends against characterisation as a jurisdictional fact
Where the legislative scheme provides for consultation to occur at the decision-making phase, as here, that is an indicator that the matter is to be determined by that process, and not by a court on review.
Section 3.30 of the Environmental Planning and Assessment Act provides for consultation on a proposed SEPP. This is a legislative mechanism through which interested persons can comment on what is proposed, which would include raising any disagreement about the identification of land as "coastal wetlands" in proposed maps. That scheme for consultation in relation to a legislative instrument would be undermined if the matter in truth falls subsequently to be determined by a court.
I accept that there is no obligation to consult under s 3.30 of the Environmental Planning and Assessment Act. Rather, provision is made for such consultation as the Minister considers appropriate or necessary. Nevertheless, such a provision reinforces my conclusion that the process of preparing a SEPP for making by the Governor is essentially a legislative exercise, not intended to be subject to review on objective grounds by the Court.
[20]
The relevance of subjective language
The appellant emphasised that s 6(1) of the Coastal Management Act is not expressed by reference to any individual's state of satisfaction. However, that is not a conclusive indicator that the provision creates an objective jurisdictional fact. The absence of subjective terminology is of diminished significance in circumstances where, as here, s 6(1) of the Coastal Management Act is not a provision that confers or conditions the power to make a SEPP. Rather, as I have explained, it is a provision that takes a definitional form and identifies the consequences of a SEPP that is made, where the SEPP includes the identification of a "coastal wetlands and littoral rainforests area".
[21]
Conclusion in relation to jurisdictional fact
I have concluded that the power to make the Coastal Management SEPP does not depend upon an objective jurisdictional fact about the characteristics of the land forming part of the "coastal wetlands and littoral rainforests area". These conclusions are sufficient to reject grounds 1-8 of the notice of appeal.
[22]
Conclusions in relation to specific grounds of appeal
The following points arise in response to further specific arguments advanced by the appellant under particular grounds.
Grounds 1, 3, 4 and 5 are really different aspects of the same argument. The question of whether or not a "coastal wetland" needs to be inundated by water at the surface at least some of the time was a matter that was explored by each of the parties' experts on the hydrological characteristics of "coastal wetlands".
It was submitted that an essential characteristic of a "wetland" within the meaning of s 6(1) of the Coastal Management Act was that it was land that was inundated with water at least part of the time. In seeking to construe the reference to "wetlands" in s 6(1) of the Coastal Management Act, the appellant relied upon dictionary definitions and on the treatment of allegedly cognate terms in other Acts and legislative instruments. I reject the reliance on dictionary definitions as providing assistance in this case. This is not to deny the value of dictionary definitions in some cases and some contexts. As Leeming JA explained in South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [79]:
"[79] A dictionary will give a range of meanings of a word. The task of a court is to identify, from text, context and purpose, the particular meaning that a statutory provision bears. The function of a dictionary and the function performed by a court construing a statute are utterly different. It must be borne in mind that the meaning of any word used in a statute depends on the context and purpose of the legislation in which it appears: Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15 at [18]." (Emphasis in original.)
I also reject the appellant's reliance upon the definition of terms used in other Acts and legislative instruments to construe the meaning of those terms in the present context. Absent some indication that the context is the same or similar, or some obvious relationship between the Acts or instruments in question, it is generally unhelpful to transpose the meaning of a term from one statutory context to another.
The appellant's deceptively simple submission that "it's not difficult to determine a wetland" should be rejected. As this case demonstrates, the question "what is a wetland" throws up a broad range of possible answers. Determining the meaning, at large, of the terms "wetland" or "coastal wetland", does not resolve the character of the constraint, if any, on the power to make a SEPP imposed by s 6(1) of the Coastal Management Act. I reject the appellant's submission that arriving at a construction of the words "wetlands" or "coastal wetlands" assists in resolving the jurisdictional fact debate. Construing individual words plucked from their context in the Coastal Management Act does not assist in identifying the correct construction.
[23]
Ground 9: Proportionality
The appellant's argument on ground 9 turned on the interpretation of the phrase "land adjoining those features" in s 6(1) of the Coastal Management Act for the purpose of determining whether the asserted jurisdictional fact in that section was met.
The appellant submitted that the identification of land "adjoining" coastal wetlands was required to be reasonably and appropriately adapted to achieving the objects and aims of the Coastal Management Act and the Coastal Management SEPP. If not, it was submitted that it would lack proportionality.
The appellant adduced expert evidence about whether the approach adapted in designating the "proximity area for coastal wetlands" of mapping a uniform distance of 100 metres from the identified wetland was reasonably and appropriately adapted to achieving the aims and objectives. The primary judge rejected that evidence as irrelevant.
The appellant submitted that the primary judge should have considered that expert evidence and used the evidence to inform the application of s 6(1) in this case. The appellant submitted that the primary judge should have found that the additional mapping of "adjoining" land needed to be directly related and proportionate to the protection of the areas with those characteristics.
[24]
Consideration - ground 9
As I have explained in addressing ground 8, the appellant's argument in relation to ground 9 involves the assumption that the "proximity area" in the Coastal Wetlands and Littoral Rainforests Area Map corresponds in meaning to "adjoining" land in s 6(1) of the Coastal Management Act. As I have said, I do not accept that submission.
In any event, the appellant's contention that the 100 metre zone mapped as "proximity area" was not reasonably appropriate and adapted to serving the objects of the Coastal Management Act and the Coastal Management SEPP pays insufficient regard to whether this area serves the objects of the Coastal Management Act. I reject the appellant's reliance upon the conclusions of its experts that 40 metres from land displaying the relevant characteristics was an appropriate "proximity area". The personal preference of these experts about what they think is an appropriate "buffer" do not address proportionality according to the standard of legal validity.
There is no basis to conclude that the Coastal Management SEPP is disproportionate in any sense to the objectives of the Coastal Management Act, the Environmental Planning and Assessment Act or the Coastal Management SEPP. There is nothing unreasonable or disproportionate about the technique adopted in the Coastal Management SEPP of identifying a proximity area, or buffer, around areas identified as "coastal wetlands". The use of that proximity area has to be understood in the context of the Coastal Management SEPP as a whole and the role that designating certain land as "proximity area" has in terms of engaging certain development controls: see cl 11 of the Coastal Management SEPP.
The use of a proximity area should also be understood in the context of a State-wide map. The technique of imposing a generic proximity area or buffer zone is both rational and proportionate as a legislative device to serve the objects of both the Environmental Planning and Assessment Act and the Coastal Management Act. This is particularly so in circumstances where it is used to trigger an analysis of adverse development impacts. This permits the specific factual circumstances of any mapped area to be considered in the context of a particular development application.
Ground 9 should be rejected.
[25]
Ground 10: Map not before the Governor
The appellant submitted that the power to make a SEPP under the Coastal Management Act is reposed in the Governor. Accordingly, it must be the Governor who identifies the relevant area by making the SEPP, not the Minister. In this case, the appellant submitted that the Governor did not do so.
The appellant submitted that the evidence demonstrated that at no stage did the Governor approve the Coastal Wetlands and Littoral Rainforests Area Map. Instead, it was the Minister.
[26]
Consideration - ground 10
There is no factual dispute about what occurred in relation to the process of the Governor making the Coastal Management SEPP. The appellant's argument proceeds from an inaccurate description of the way in which the Governor, in making the Coastal Management SEPP, "identified" the coastal wetlands and littoral rainforests area by adopting the Coastal Wetlands and Littoral Rainforests Area Map that had been approved by the Minister. It is a false issue whether or not the Governor "approved" the Coastal Wetlands and Littoral Rainforests Area Map.
As I said at the outset, the power of the Governor to make a SEPP arose under s 3.29 of the Environmental Planning and Assessment Act. Having regard to the terms of s 6(1) of the Coastal Management Act, one of the outcomes that could be achieved by a SEPP was to "identify" land to comprise the coastal wetlands and littoral rainforests area for the purposes of the Coastal Management Act. The Governor achieved this by making the Coastal Management SEPP. This is because the Coastal Management SEPP identifies the land which comprises the coastal wetlands and littoral rainforests area. It does so explicitly through cl 6. Clause 6(2) provides that the coastal wetlands and littoral rainforests area is the land identified as such by the Coastal Wetlands and Littoral Rainforests Area Map.
Clause 8(1) of the Coastal Management SEPP provides that a reference to a map is a reference to the relevant map of that name which has been "approved by the Minister when the map is adopted". Contrary to the appellant's submission, the identification of land is thereby achieved by the Coastal Management SEPP, at the moment the SEPP is made, through the adoption of a specific pre-existing map which has already been, at the time of its adoption, approved by the Minister.
Nothing in the Environmental Planning and Assessment Act or the Coastal Management Act required the Governor to identify land as the coastal wetlands and littoral rainforests area through any particular process of "approval". It was open to the Governor to make an instrument which identified land through the device of adopting by reference a map which had been approved by the Minister. There is no dispute that the Minister had in fact approved the Coastal Wetlands and Littoral Rainforests Area Map which the Governor then adopted in making the Coastal Management SEPP. Nor is it relevant to search for a statutory power on the part of the Minister to approve a map. The Minister's approval of a map assumed no legal significance until the Governor chose to make a SEPP which adopted that approved map by reference. No question of delegation of the Governor's power arises.
[27]
Conclusion and orders
For the foregoing reasons I propose the following orders:
1. Appeal dismissed;
2. Appellant to pay the costs of the respondent.
[28]
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: 11 November 2020
Parties
Applicant/Plaintiff:
Reysson Pty Ltd
Respondent/Defendant:
Minister Administering the Environmental Planning and Assessment Act 1979
Appeal dismissed; appellant (Reysson Pty Ltd) ordered to pay the costs of the respondent.
The nature of the task to be performed tends against characterisation as a jurisdictional fact: [56]. Whether it is appropriate for land to be identified as part of a "coastal wetlands and littoral rainforests area" involves a careful assessment of complex factors and the formation of opinions and value judgments about a range of matters: [69]. The legislature did not intend that a court would make a policy judgment of this kind: [70].
Inconvenience tends against characterisation as a jurisdictional fact. While the extent of any orders invalidating parts of the Coastal Management SEPP may be confined, the validity of a legislative instrument being subject to such uncertainty is undesirable: [76].
Section 3.30 of the Environmental Planning and Assessment Act, being a provision for consultation, tends against characterisation as a jurisdictional fact: [78].
The power to make the Coastal Management SEPP does not depend on an objective jurisdictional fact about the characterisation of land forming part of the "coastal wetlands and littoral rainforests area": [55], [81].
The technique of imposing a generic proximity area or buffer zone is both rational and proportionate as a legislative device to serve the objects of the Environmental Planning and Assessment Act and the Coastal Management Act: [106].
Apart from requiring the prior recommendation of the Minister administering the Coastal Management Act (s 10(2)), about which there was no complaint by the appellant, the Coastal Management Act did not impose any conditions on the process by which the Governor may make a SEPP that identifies a coastal management area. The only requirement is that the SEPP which is made by the Governor must "identify" the area. The power to identify an area in this way does not carry with it an implication that the Governor must have a particular state of mind or satisfaction about the area being so identified: [114].
The appellant grouped the appeal grounds into three distinct issues or sets of issues. It is convenient to adopt that characterisation for the purpose of these reasons:
1. grounds 1-8 relate to the primary judge's interpretation of s 6(1) of the Coastal Management Act and her Honour's application of that section to the Reysson Land. These grounds address the primary judge's findings in relation to whether that section contains a jurisdictional fact, and the manner in which the primary judge approached that task;
2. ground 9 challenges the failure to find that the additional mapping of "adjoining" land was not directly related and proportionate to the protection of the "features" specified in s 6(1) of the Coastal Management Act; and
3. ground 10 complains that the Coastal Wetlands and Littoral Rainforests Area Map was not before the Governor when making the SEPP.
The appellant submitted that the primary judge should have found that the term "coastal wetland" had a meaning (whether popular or technical) of being a discrete geographic feature with specific characteristics, most notably that it was cyclically, intermittently or permanently inundated or wet, that was an indicator that should have been taken into account in the task of statutory construction of s 6(1) of the Coastal Management Act and consideration of whether that provision contained a specification of a jurisdictional fact.
The appellant submitted that a relevant consideration in the construction exercise was whether an evaluative judgment was required. If the exercise of identification involves assessing whether land displays the hydrological and floristic characteristics of coastal wetlands, one must first identify what a "coastal wetland" is within the meaning of s 6(1) of the Coastal Management Act, and then identify its characteristics.
The appellant submitted that the primary judge's finding that it was unnecessary to form a view about the meaning of the term "coastal wetland" was an error. This is the substance of appeal ground 5. The appellant submitted that the error was material as it affected the overall construction of s 6(1) of the Coastal Management Act.
The appellant submitted that whether the term "wetland" is given its popular or technical meaning, the meaning would be that overall, an area which displayed the hydrological and floristic characteristics of "coastal wetlands" would be an area of land:
1. inundated cyclically, intermittently or permanently with water (the hydrological characteristics); and
2. vegetated with wetland plant communities (the floristic characteristics).
The appellant submitted that as a consequence, the primary judge should have found that it was an essential characteristic of a "wetland", as that term is used in s 6(1) of the Coastal Management Act, that it was land which was wet, in the sense of being inundated with water, at least part of the time. This forms the basis of appeal ground 1.
Appeal ground 2 relates to the primary judge's finding about whether "coastal wetlands" as described under s 6(1) of the Coastal Management Act have to be natural. Relevantly, the primary judge said:
"Do 'coastal wetlands' as described under s 6(1) have to be natural?
[132] The summons in Grounds 1 and 2 referred to land with hydrological and floristic characteristics of coastal wetlands, and land which naturally displays hydrological and floristic characteristics of coastal wetlands. Reysson's case altered over the course of the hearing as to whether the coastal wetlands area identified as having the hydrological and floristic characteristics of coastal wetlands had to be 'natural'. The primary case in opening written and oral submissions, reflected in Reysson's expert evidence, was that s 6(1) of the CM Act required the characteristics of coastal wetlands to be found in their natural state on land identified for the CM SEPP. An alternative submission was also made that identified coastal wetlands did not have to be natural. Nevertheless a lot of court time was spent on expert evidence and submissions which were prepared on this basis.
[133] A main point of disagreement between the experts was the question of what were the relevant characteristics if a wetland had to be 'natural'. On this basis Dr Clements excluded from her assessment various areas of the Reysson land because they were not part of naturally occurring ecosystems, or because they were on land that was not a natural landform or on land with disturbed soils. Dr Martens also adopted a similar approach in relation to hydrology.
[134] I can address this issue as a matter of statutory construction without needing to delve into the extensive and disputed expert evidence of the hydrologists, ecologists and agricultural and environmental scientists.
Reysson's submissions
[135] The power to map land within the CWLR area extends under s 6(1) of the CM Act only to land which naturally displays 'the hydrological and floristic characteristics of coastal wetlands or littoral rainforests or land adjoining those natural features'. One of the management objectives under s 6(2)(a) of the CM Act for the CWLR area is 'to protect coastal wetlands and littoral rainforests in their natural state …'. Further, one of the objects of the CM Act (s 3(a)) is 'to protect and enhance natural coastal processes and coastal environmental values including natural character, scenic value, biological diversity and ecosystem integrity and resilience'. Section 3(g) concerns natural processes in referring to the ambulatory and dynamic nature of the shoreline. These provisions demonstrate that the object of the legislation is the protection of natural areas: Wacando v Commonwealth (1981) 148 CLR 1; [1981] HCA 60 at 15-16, 23; Municipal Officers Association of Australia v Lancaster (1981) 37 ALR 559 at 579-80; Tickner v Bropho (1993) 40 FCR 183 at 417-18, 433-34. Additionally there are references to natural processes and values in the management objectives of the coastal environment area (s 8) and coastal use area (s 9).
Minister's submissions
[136] There is no sound basis for construing s 6(1) of the CM Act on the basis that the relevant characteristics must be present 'naturally' in order for the area to be properly identified in a SEPP as coastal wetlands. If the legislature had intended to import such a significant qualification, it would have done so in clear terms. It is a highly strained construction to say that because there is reference to 'natural' in the particular statutory object in s 3(a) it follows that it is alien to the objects of the CM Act to make a SEPP which has the effect of applying development controls to vegetation communities that have the characteristics of a wetland but only because of some historical process of human intervention. The CM Act has many other objects that contain no qualification by reference to the word 'natural' including facilitating ecologically sustainable development in the coastal zone and promoting sustainable land use planning (s 3(e)). The objects of the EPA Act, which is the source of the power to make the SEPP, are not limited to the environment in its 'naturally occurring' state.
[137] This construction would render the process of making a SEPP for the purposes of s 6 of the CM Act highly impractical, if not impossible. It would not be enough for the Governor in making a SEPP to identify those areas of land that have the floristic and hydrological characteristics of wetlands, using aerial photographs and surveys inter alia. The Governor would need to conduct a historical investigation of every such area in NSW to ascertain whether there has been some process of disturbance in the past.
[138] In any event, Reysson's factual characterisation is flawed because it wrongly treats environmental features as not 'natural' merely because they have been influenced in one way or another by human activities. The object in s 3(a) is to 'protect and enhance' natural coastal processes and coastal environmental values. That object is capable of being advanced by a SEPP which identifies and aids in the protection of land which now has the characteristics of a wetland, regardless of whether some of those characteristics have been influenced by past human activities.
Coastal wetlands identified under the Area Map in the State Environmental Planning Policy (Coastal Management) 2018 do not have to be natural
[139] The Minister's submissions on statutory construction are correct. The word 'natural' does not appear in s 6(1). No basis for reading it into the section by inference arises from the statutory scheme. To do so would give rise to the problematic construction issues highlighted in the Minister's submissions, not to mention the substantial practical difficulties also engendered by such an approach."
The appellant submitted that its case did not change as the primary judge found. Instead, the appellant's case was always put on two alternative bases: that the relevant areas of land did not display the hydrological and floristic characteristics of coastal wetlands, or did not naturally display those characteristics.
As to appeal ground 2, the appellant submitted that a requirement for the specified characteristics to be naturally displayed should be read into s 6(1) of the Coastal Management Act. This was because:
1. the management objectives in s 6(2) of the Coastal Management Act referred to the protection of coastal wetlands and littoral rainforests "in their natural state";
2. the objects of the Coastal Management Act relevantly referred at s 3(a) to protection and enhancement of "natural coastal processes and coastal environmental values" and "natural character, scenic value, biodiversity and ecosystem integrity and resilience"; and
3. therefore, the statute evinces an intention to protect natural places, processes and values rather than artificial environments.
The appellant summarised its conclusions in relation to grounds 1-6 as follows:
1. the primary judge should have given meaning to "coastal wetlands" to inform the construction of whether s 6(1) contains a proposition of jurisdictional fact;
2. the primary judge should have found that "land which displays the hydrological and floristic characteristics of coastal wetlands" meant land which was inundated cyclically, intermittently or permanently with water; and
3. the primary judge should have found that s 6(1) required the relevant land to display these characteristics naturally, not as a result of artificial processes.
The appellant submitted that the primary judge erred at [100]-[106] in relation to the structure of the statutory scheme. The appellant submitted that only the first part of s 6(1) of the Coastal Management Act performs a definitional function. The balance of the provision must be given some work to do. The appellant submitted that were the further words not there, the Governor would have an unconfined discretion about the lands which could be identified as being within the coastal wetlands and littoral rainforests area.
The appellant submitted that this is important as, once the land is identified as being within the coastal wetlands and littoral rainforests area, that land must be managed in accordance with the set of management objectives set out in s 6(2) of the Coastal Management Act.
The appellant submitted that the fact that the provision is expressed in the present tense is of no moment. The appellant submitted that it was also of little relevance whether ss 7, 8 and 9 stand to be construed according to their own terms. If part of s 6(1) of the Coastal Management Act contains a jurisdictional fact, the appellant submitted it would indicate that the legislature has taken it upon itself to identify the type of land to be subject to management in the coastal wetlands and littoral rainforests area and then only left to the Governor to determine what land of that type should in fact be placed within that zone.
As to the structure of the statutory scheme, the respondent submitted that where a SEPP such as the Coastal Management SEPP "identifies" land as being a "coastal wetlands and littoral rainforests area", and does so for the purposes of the Coastal Management Act, it is to be treated effectively as identifying land as such for the purposes of the Coastal Management Act. The Coastal Management SEPP achieves such identification through its adoption of the Coastal Wetlands and Littoral Rainforests Area Map.
The appellant also challenged the primary judge's findings at [107]-[110] as to the nature of the task. The primary judge there found:
"Nature of the task
[107] In Pallas Newco at [53], [56]-[61] Spigelman CJ held (referred to with approval in Dungog by Basten JA at [179], Gleeson JA agreeing):
[53] The first factor which may support a conclusion that the appropriate classification of a proposed development is not jurisdictional concerns the element of fact and degree involved when determining whether or not a particular proposal answers the statutory description.
…
[56] Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction.
...
[60] It is not always the case that matters of judgment involved in determining the existence of facts, let alone matters of fact and degree, mean that the fact is not jurisdictional. For example:
• whether or not a report about an employee was 'substantially favourable' was found to be an objective test. (See Sutherland Shire Council v Finch (1969) 123 CLR 657 at 663-666 and see below Sutherland Shire Council v Finch (1970) 71 SR(NSW) 315 at 324-325 per Mason JA as his Honour then was.)
• whether development was 'likely to significantly affect threatened species' was found to be jurisdictional. (Timbarra)
• whether an industry was 'likely … to produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land' was found to be jurisdictional. (City of Enfield fn 16, [6] and [28].)
...
• whether property 'may be material as evidence in proving' an offence for which extradition is sought was jurisdictional. (Cabal v Attorney General (Cth) (2001) 113 FCR 154 at [19], [74]-[76].)
• the High Court divided equally on whether or not a test expressed in terms of the existence of an 'irregularity' constituted a jurisdictional fact. (R v Gray; Ex parte Marsh (1985) 157 CLR 351.)
[61] In each case it was the overall statutory context that proved determinative as to whether or not Parliament intended the existence of the fact to both objectively exist and be essential, notwithstanding the element of fact and degree, or even of judgement, that was required in the process of determining whether or not the relevant fact existed.
[108] As the extract of Pallas Newco highlights in [61], the overall statutory context informs the consideration of fact and degree. As identified in Pallas Newco in [60], in Timbarra the Court of Appeal held that whether a development was 'likely to significantly affect threatened species' under the EPA Act was found to be a jurisdictional fact, a decision Reysson relied on. That is one example where a decision requiring the evaluation of expert evidence was found to identify a jurisdictional fact.
[109] The CM SEPP identifies a scheme which applies to the whole of the NSW coastal zone. A clear indication that the determination of certain characteristics of land as required by s 6(1) is not a jurisdictional fact is the nature of the task this requires. Reysson relied particularly on [57]-[58] of Pallas Newco and Dungog at [184] as distinguishing evaluation from value judgment. Section 6(1) is evaluative according to Reysson, meaning it is more likely to be jurisdictional. The distinction is unclear to me. Contrary to Reysson's submission, substantial elements of fact and degree arise in determining if land displays certain hydrological and floristic characteristics of coastal wetlands. It is not strictly necessary to go further than the experience of this case. Lengthy and complex contested expert evidence has been adduced over a number of days, requiring the resolution of a large number of matters, as summarised above at [51]-[52]. This evidence concerns a small part of one polygon, out of the nearly 6,000 polygons which make up the Area Map for the whole coastal zone of NSW created under the CM SEPP. Reysson's assertion that creating the Area Map was a simple exercise based on the former SEPP 14 maps is unsupported by evidence. The evidence is to the contrary according to Ms Camroux's affidavit summarised above at [14]-[15]. This evidence, the further extensive expert evidence relied on in these proceedings summarised above at [11]-[12], [25]-[52] and the parties' lengthy submissions about the expert evidence, identified by page length at [52] above, establish that there are a large number of matters of fact and degree which inform the decisions made to identify the CWLR area for the purposes of s 6(1) of the CM Act.
[110] The substantial evaluative task required under the CM Act also suggests the application of expertise is essential. That is reflected in the evidence adduced in this case."
The appellant submitted that while it is relevant to consider as part of the exercise of statutory construction the potential need for application of some evaluation to determine whether or not a state of facts exist, that factor is rarely determinative of a matter not being a statement of jurisdictional fact. Even when facts are described as "objective" they do not have an existence independent of their identification by some process of human agency.
The appellant challenged the primary judge's findings about inconvenience at [111]-[115]. The primary judge there found:
"Inconvenience
[111] Substantial inconvenience, including uncertainty, can arise if the Governor's decision is able to be reversed by the Court on the basis that the decision to approve the CM SEPP concerns a jurisdictional fact. In Pallas Newco, the issue was whether the characterisation of proposed development as a drive-in take-away establishment (development permissible with consent under the relevant local environmental plan (LEP)) was a jurisdictional fact. Spigelman CJ held (Mason P agreeing) at [85] that the degree of inconvenience that may arise from a finding that the fact was jurisdictional was "considerably attenuated by the strict time limit [three months] for challenge to a decision to grant consent".
[112] Reysson submitted in reply that the inconvenience arising from a finding of jurisdictional fact was ameliorated because the statutory time bar for commencing judicial review proceedings had now lapsed, it was the only challenger and no further challenges could be made. As Reysson submitted, this was a matter identified in Pallas Newco by Spigelman CJ at [85]. While that may be correct for the Area Map the subject of challenge, the evidence of Ms Ryan summarised above at [19] confirms that the Area Map was amended in December 2018 by the making of another SEPP. It is foreseeable that the Area Map will be amended from time to time. This suggests that the opportunity for challenge could arise on future occasions particularly if a finding in Reysson's favour is made in this case.
[113] That the relevant part of the polygon can be severed from the Area Map, as the parties agreed could occur for the purposes of Ground 2, does not overcome the overall inconvenience and harm to the coherence of the statutory scheme if one small area is treated differently to the rest of the defined coastal zone stretching along the whole coast of NSW. That is one of the major differences from the statutory scheme considered in cases such as Enfield, Timbarra, Pallas Newco and Dungog which effectively dealt with the evaluation of matters concerning only one site. Although Reysson's land is singled out in these proceedings, the application of the CM Act and CM SEPP is as part of a coherent and detailed scheme applying to the whole NSW coastal zone.
[114] Reysson also sought to counter the degree to which inconvenience arises from finding that s 6(1) of the CM Act gives rise to a jurisdictional fact by submitting that the identification of an area as within the CWLR area has very serious implications for a landholder with a number of cascading consequences. Under cl 10 of the CM SEPP there are limitations on development for land so identified. These are much stricter than those applied to coastal wetlands identified under the former SEPP 14. Land mapped within the CWLR area under the CM SEPP must be mapped as 'category 2 - regulated land' under Pt 5A of the LLS Act: ss 60E and 60I(2)(i). The consequence of this mapping is that it is an offence to clear native vegetation on such land unless in accordance with the Land Management (Native Vegetation) Code 2018, an approval or other relevant defence: LLS Act ss 60D and 60N. Whether economic and practical inconvenience to a landholder in developing their land as a result of legislative restrictions on development is relevant to the statutory construction of s 6(1) of the CM Act is not supported by any authority referred to by Reysson. Since their commencement many decades ago planning laws have regulated development on private land. That circumstance is not a statutory construction principle I am aware of in the context of determining if a jurisdictional fact is identified.
[115] I agree with the Minister that the relevant inconvenience which would arise is in relation to the substantial number of those affected by the overall lack of certainty in the statutory scheme that would arise if each owner of land included within the Area Map could theoretically challenge its inclusion on the basis that the land did not display the relevant characteristics in s 6(1)."
The appellant submitted that while the degree of inconvenience is a material factor to be taken into account to inform the process of statutory construction, it was not determinative.
The appellant submitted that there was no basis for the primary judge to distinguish Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422, because a similar three month limitation period applies to challenges to environmental planning instruments such as the Coastal Management SEPP: s 3.27 of the Environmental Planning and Assessment Act.
The appellant submitted that the final sentence at [112] of the primary judgment suggests that the primary judge considered a consequence of Reysson's interpretation of s 6(1) being accepted would be that other proceedings might rely upon the same interpretation. The appellant submitted that such reasoning should play no part in statutory interpretation.
The appellant submitted that the finding at [113] that the possibility of severance does not overcome inconvenience and harm to the statutory scheme is contradictory. If the proper construction of the statutory scheme is that s 6(1) of the Coastal Management Act provides a limitation on power, it can do no harm to the statutory scheme to give effect to that limitation.
Finally, the appellant submitted that Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8, Pallas Newco and Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 could not be distinguished on the basis that they "dealt with the evaluation of matters concerning only one site". While each case dealt with a step in the process of granting individual development consents, the underlying statutory scheme applies to all development consents. It was submitted that the reasoning in those cases has application to the grant of any development consent.
The appellant also challenged the primary judge's findings on consultation at [116]-[118]. The primary judge there found:
"Consultation
[116] As Reysson submitted, whether consultation occurs before a SEPP is made is a matter for the Minister's discretion under s 3.30 of the EPA Act. Consultation is not a mandatory requirement. As identified in Ms Camroux's affidavit summarised above in [13]-[15] extensive consultation occurred in the course of preparing the CM SEPP inter alia during 2015, 2016 and 2017. Substantial expert input was obtained by the Department including from local councils concerning their mapping of coastal areas.
[117] At issue in Huntlee (relied on by Reysson) was whether the words in the former s 93F(3)(g) of the EPA Act, '[a] planning agreement must provide for … the enforcement of the agreement by a suitable means …' specified a jurisdictional fact. Draft planning agreements had to be publicly exhibited for a minimum period of time. This was a relevant factor in the Court of Appeal's finding that s 93F(3)(g) did not specify a jurisdictional fact: Huntlee at [120].
[118] The capacity for consultation is expressly provided for, and that is an indicator that the identification of land pursuant to s 6(1) of the CM Act is for the Minister not the Court. That it is not mandatory for every SEPP does not undermine that conclusion."
The appellant submitted that these paragraphs illustrated a fundamental error because there is no mandatory requirement to conduct consultation prior to making a SEPP, rather, the Minister may elect to take such consultative steps as the Minister "considers appropriate or necessary".
The appellant submitted that there is no additional requirement in the Coastal Management Act mandating consultation for a SEPP identifying the coastal wetlands and littoral rainforests area. The fact that the statutory scheme does not in terms mandate any consultation or expert input into the process of identification supports construing s 6(1) of the Coastal Management Act as imposing a factual constraint upon the power to identify land within the coastal wetlands and littoral rainforests area.
The appellant submitted that the primary judge did not substantially deal with the appellant's submissions below on the meaning of the word "adjoin". The primary judge made no attempt to give meaning to the word "adjoin" or provide reasons for finding that "how far adjoining land extends is unconfined".
The appellant further submits that the primary judge's analysis also failed to appreciate that incorrect identification of the area with the relevant wetland characteristics means that any identification of land purportedly "adjoining" that land must be flawed. If the area of coastal wetland had been wrongly applied then the 100 metre proximity area would not have correctly identified "land adjoining" the wetland.
It is to be borne in mind that the extent of the evaluative exercise and the degree of inconvenience are material factors to be taken into account, not to dictate a particular outcome, but to inform a process of statutory construction: Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [17].
Where a SEPP such as the Coastal Management SEPP "identifies" land as being a "coastal wetlands and littoral rainforests area", and does so for the purposes of the Coastal Management Act, it identifies land having that character for the purposes of the Coastal Management Act. The Coastal Management SEPP achieves such identification through its adoption of the Coastal Wetlands and Littoral Rainforests Area Map: see cll 4 and 8 of the Coastal Management SEPP.
Section 6 of the Coastal Management Act does not restrict or condition the power to make a SEPP which is conferred by s 3.29 of the Environmental Planning and Assessment Act. Rather, it describes one of the consequences that the contents of a SEPP may have where the SEPP is made for the purposes of identifying coastal management areas.
Section 6(1) of the Coastal Management Act also describes the type of land which is to be identified by a SEPP to be the coastal wetlands and littoral rainforests area for the purposes of the Coastal Management Act. It is not, however, expressed as a condition on the exercise of the power. Section 6(1) of the Coastal Management Act describes characteristics that make it appropriate for land to be identified as a "coastal wetlands or littoral rainforests area", but does not stipulate that the power to make a SEPP that identifies such areas only exists if those characteristics exist. The intention of the legislation is that those responsible for preparing the maps by which land can be identified as the "coastal wetlands or littoral rainforests area" by a SEPP will need to exercise judgment in identifying areas that have the requisite characteristics, or adjoin areas that have the requisite characteristics, before incorporating those areas into such maps. It is not correct, as submitted by the appellant, that the provision has no work to do or otherwise confers an "unconfined discretion" unless it is construed to provide a jurisdictional fact.
The criterion which the appellant says is an objective jurisdictional fact goes to the heart of the exercise of making the legislative instrument, namely the identification and selection of land appropriate to be mapped as part of the coastal zone, in this case the "coastal wetlands and littoral rainforests area". The determination of the presence or absence of the condition will necessarily fall to be made in the course of the consideration of the exercise of the power. As explained in Timbarra at [44] and Muswellbrook Shire Council at [30] this is an important and usually determinative indication that the fact in question is not a jurisdictional fact.
The structure of the legislation tends strongly against a conclusion that the fact relied upon by the appellant is a jurisdictional fact. Section 10(2) of the Coastal Management Act expressly restricts the power to make a SEPP that identifies a coastal management area, by requiring that there must be a recommendation of the Minister administering the Coastal Management Act. If the Parliament had intended to create an essential objective precondition to the exercise of the power it could have structured s 6 in a way that was equivalent to s 10(2), but chose not to. If the appellant were correct that s 6(1) created an objective jurisdictional fact, the same would apply to the other provisions of the Coastal Management Act which are structured in an identical way and contemplate the identification of other areas within the coastal zone. The relevant provisions are:
1. s 7(1), which addresses the "coastal vulnerability area" which is described as land "subject to coastal hazards". Coastal hazard is a defined term (s 4) and it includes such matters as coastal cliff or slope instability and coastal inundation;
2. s 8(1), which addresses the "coastal environment area" which is described as land "containing coastal features such as the coastal waters of the State, estuaries, coastal lakes, coastal lagoons and land adjoining those features, including headlands and rock platforms"; and
3. s 9(1), which addresses the "coastal use area" which is described as "land adjacent to coastal waters, estuaries, coastal lakes and lagoons where development is or may be carried out (at present or in the future)".
Determining which land can and should be identified as forming part of each of these areas may, and frequently will, involve complex, contestable evaluative judgments. It is improbable that the legislature intended that these provisions turn on objective jurisdictional facts. The similar structure suggests a common intention throughout about the nature of the mapping exercise and the qualifying criteria specified in respect of the different zones.
A further factor militating against the appellant's construction of the Coastal Management Act is that s 6(1) of the Coastal Management Act is expressed in the present tense. On the appellant's construction, a SEPP can only validly identify land as coastal wetlands if, as a matter of objective fact, it addresses "land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features." On this construction, a court must determine that fact for itself. In doing so, the court must consider the characteristics of the land as at the date the instrument was made, rather than the date the court comes to consider the evidence. Yet in making this assessment, a court is likely to be at a significant disadvantage compared with those who prepared the maps, because of the difficulty in identifying what characteristics of the land were "displayed" in the past. Senior Counsel for the appellant accepted that "climate change is probably the best example of that where wetlands can shift, expand or reduce, depending on exogenous hydrological conditions". It was submitted that "they're still part and parcel of the natural process". The point, for present purposes, is that it is unlikely that the legislature would have intended the validity of a SEPP to turn on such an evaluation by a court.
The primary judge heard three days of evidence about the characteristics of one relatively small area of land forming part of just one of almost 6,000 polygons that comprise the Coastal Wetlands and Littoral Rainforests Area Map. The preparation of the complete Coastal Wetlands and Littoral Rainforests Area Map, involving the identification and mapping of land having the relevant characteristics, was no doubt a complicated and technical task. It is highly improbable that the legislature intended that the validity of the mapping exercise would fall to be determined by a court's own assessment of hydrological and floristic characteristics of land included in each of the 5,832 polygons comprising the Coastal Wetlands and Littoral Rainforests Area Map.
I reject the appellant's submission that as they are the only party to complain about the validity of the Coastal Wetlands SEPP this is a factor of lesser importance. That submission does not address the present task of statutory construction.
The evaluative judgment required under s 6(1) of the Coastal Management Act is not the identification of a "wetland", but rather, an assessment of whether the hydrological and floristic characteristics of coastal wetlands are displayed. At most, resolving the interpretation of those words might inform some of the detail of the evaluative criteria to be applied. But whatever constructional choices are made, the basic nature of that evaluative exercise remains. Even if "wetland" had one particular meaning, rather than its meaning in this context, that will not detract from the need for an evaluative exercise to be carried out in determining what the characteristics of particular land are, measured against that interpretation. For these additional reasons, I would reject grounds 1, 3, 4 and 5.
Ground 2. This ground took issue with the primary judge's failure to find that an essential characteristic of a wetland within s 6(1) was land which was inundated by natural processes, as distinct from artificial ones such as drainage.
I reject the appellant's submission. There are no textual or purposive considerations that suggest such a qualification on the explicit words of the Coastal Management Act should be implied. Such an approach would be difficult, if not impossible, for any decision-maker to apply. The appellant's attempts to explain what "natural" meant in this context demonstrate the inherent instability in the concept itself, making it unlikely that the legislature intended to imply such a requirement.
Grounds 6 and 7. I have addressed grounds 6 and 7 sufficiently in determining that s 6 of the Coastal Management Act does not identify a jurisdictional fact. Those grounds must be dismissed.
Ground 8. It will be recalled that ground 8 complained about the conclusion of the primary judge at [129] and [130] set out at [49] above. The primary judge found that even if an objective jurisdictional precondition was to be discerned from s 6(1) of the Coastal Management Act, the appellant's grounds of review must fail because, even on Reysson's case, the area mapped as "coastal wetlands" was land which either displayed the specified characteristics or adjoined such land.
I have also concluded that the primary judge was correct in paragraphs [129] and [130]. Even on the assumption that s 6(1) of the Coastal Management Act created an objective jurisdictional fact, the fact in question is whether the area identified as the "coastal wetlands and littoral rainforests area" is either land having the characteristics of "coastal wetland" or land adjoining such land. As I explained at the outset, Reysson accepts that a portion of the Reysson Land displays the requisite characteristics of "coastal wetland": see the map at [8] above. Even on Reysson's case, all of the mapped land adjoins such land. The appellant's challenge to the validity of the Coastal Management SEPP based on non-satisfaction of a jurisdictional fact fails on this alternative basis.
The primary judge was correct to reach the conclusions in paragraphs [129] and [130]. The appellant's arguments on appeal erroneously contend that the Coastal Wetlands and Littoral Rainforests Area Map is to be read as if it specifically identified:
1. the area marked as "coastal wetlands", as shown on the Coastal Wetlands and Littoral Rainforests Area Map, as being land which displays the hydrological and floristic characteristics of coastal wetlands; and
2. a "proximity area for coastal wetlands", as shown on the Coastal Wetlands and Littoral Rainforests Area Map, being the land which "adjoins" coastal wetlands.
This is to confuse two different concepts. The appellant's principal argument is that the jurisdictional fact created by s 6(1) of the Coastal Management Act permits mapping of "land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features". On the assumption that there is such a jurisdictional precondition, the precondition must be read as a whole. If any given area of land fits the description, because it either displays the specified characteristics or comprises land adjoining land displaying those features, then on the appellant's case it can legitimately form part of the identified coastal wetlands and littoral rainforests area. But that is the only constraint imposed by the threshold precondition. It says nothing about how the relevant SEPP might then regulate matters within that area, including by dealing with particular sub-areas within the coastal wetlands and littoral rainforests area. One function of the Coastal Wetlands and Littoral Rainforests Area Map, in terms of identifying the coastal wetlands and littoral rainforests area for the purposes of s 6 of the Coastal Management Act, is to identify a total area as the "coastal wetlands and littoral rainforests area".
The particular map which has been adopted by the Coastal Management SEPP identifies the sub-areas of "coastal wetlands" and "proximity area for coastal wetlands". It does not follow that the first sub-area is to be construed as being linked to one part of the jurisdictional precondition, whereas the second sub-area is to be construed as being linked to another part. That does not follow either from the nature of the provisions or from the form of the map. These are legislative choices, not classifications driven by the asserted jurisdictional precondition.
The argument developed by the appellant is built on the flawed foundation that the Coastal Wetlands and Littoral Rainforests Area Map purported to map that land which displayed the hydrological and floristic characteristics of wetlands and then proceeded to separately map the land "adjoining" such features as the "proximity area". An area identified on the map as either "coastal wetland" or "proximity area" could legitimately include land which, though not itself displaying the hydrological and floristic characteristics of a wetland, adjoined such land. As the map reproduced at [8] above shows, there is no sound basis to infer that the mapping proceeded on an "inherently flawed" understanding of what areas adjoined other areas.
The appellant's submissions about the different ways in which "adjoining" has been construed in other contexts provide no support for its position in the present case. The appropriate starting point in the analysis is to consider the outer boundary of the mapping of the Reysson Land, because this marks out the area that was being identified as being within the coastal wetlands and littoral rainforests area. All of the land within this boundary, even on the narrowest version of Reysson's own case, either displayed the hydrological and floristic characteristics of wetlands (being all the blue and patches of blue) or adjoined such features. There is no meaning of "adjoining" in the present context which is narrow enough to avoid this conclusion.
I would reject grounds 1-8 of the notice of appeal.
There is nothing in the Environmental Planning and Assessment Act or the Coastal Management Act that required the Governor to have regard to, approve or do anything at all in relation to making the Coastal Wetlands and Littoral Rainforests Area Map.
The Governor's power is to make an environmental planning instrument for the purposes of environmental planning by the State: s 3.29 of the Environmental Planning and Assessment Act. Apart from requiring the prior recommendation of the Minister administering the Coastal Management Act (s 10(2)), about which there was no complaint by the appellant, the Coastal Management Act did not impose any conditions on the process by which the Governor may make a SEPP that identifies a coastal management area. The only requirement is that the SEPP which is made by the Governor must "identify" the area. Contrary to the appellant's submissions, the power to identify an area in this way does not carry with it an implication that the Governor must have a particular state of mind or satisfaction about the area being so identified.