TIMBARRA PROTECTION COALITION INC v ROSS MINING NL & ORS [1999] NSWCA 8 | Case summary

TIMBARRA PROTECTION COALITION INC v ROSS MINING NL & ORS [1999] NSWCA 8 | Case summary | Zoe

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The Background Facts 3 On 9 April 1996 the Minister for Natural Resources granted a mining lease, ML 1386, to the Respondent. At that time mining was an activity permissible without consent. Accordingly Pt 5 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") applied to the application for a mining lease. 4 Tenterfield Local Environment Plan 1996 was gazetted on 3 May 1996 i.e. after the grant of the mining lease. The land relevant to these proceedings is included in Zone No 1(f) (Forest). Development for purposes of mining is permissible, subject to certain conditions, with the consent of the Council. In January 1997, the Respondent lodged a development application for extensions to and modifications of the Timbarra Gold Mine. It was this application which the Council approved on 26 June 1997 and which is the subject of these proceedings. 5 For purposes of the initial assessment under Pt 5 of the Act with respect to the grant of the original mining lease, the Respondent, through a subsidiary company, prepared an Environmental Impact Statement (EIS) for the Timbarra Gold Mine as originally proposed. According to that EIS: · The Project Site covered an area of 400 hectares. · A pipeline corridor approximately 6.5 kilometres long and 30 metres wide went from the Project Site to the Timbarra River. · The project involved open cut mining in two areas, referred to as Poverty Combine and Big Hill, with a view to the extraction of 7.6 metric tons of gold bearing ore. · The EIS noted that subject to further drilling and economic evaluation a further 1.6 metric tons may be mined through the development of the two additional open cuts and the extension of two open cuts the subject of that application. · The main components of the project were two open cuts; two waste rock implacements; a single leach heap; and an adsorption/desorption plan area with associated process water ponds. · Mining would be by the open cut method using drill and blasting techniques and gold would be extracted from the mine by using the heap leach method. 6 The area to be cleared for all of these purposes, including the open cuts, the haul road, the rock emplacement and the crusher/leach pad ponds and plant area was 76.4 hectares. 7 After the Tenterfield Local Environment Plan came into force, the Respondent sought development approval for three changes to the proposed mine as follows: (i) to add a further area for open cut mining, known as RMT. (ii) to re-route the approved access road from a northerly route to a southerly route. (iii) To make alterations to the approved Big Hill pit design. 8 The RMT area was approximately one kilometre to the south of the area hitherto approved, which had become ML 1386. Presumably this was one of the two areas for further development envisaged at the time of the original EIS. It was not, however, the subject of that, or any other such, statement. 9 According to the report of the officers of the Council, the nominal area of the new RMT pit is 50,000 square metres and the nominal area of the proposed waste dump is 10,000 square metres. 10 The alterations to the Big Hill pit involve the mining of an additional 5,000 ounces of gold from an additional 10,000 square metres of disturbed surface area. 11 Officers of the Council summarised the effect of the development application, apparently referring to all three aspects of that application, by indicating that it involves some six hectares of open cut mine and approximately 1.3 hectares of haul road. 12 Under s90 of the EPA Act the Council is required to give consideration, inter alia, to: "(c3) Whether there is likely to be a significant effect on threatened species, populations or ecological communities." 13 In considering the issue of whether the development would significantly affect threatened species, populations or ecological communities or their habitats, the Council applied s5A of the Act: "5A For the purposes of this Act and, in particular, in the administration of sections 77, 90 and 112, the following factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations, or ecological communities, or their habitats: (a) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised, (c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed, (d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community, (e) whether critical habitat will be affected, (f) whether a threatened species, population or ecological community, or their habitats are adequately represented in conservation reserves (or other similar protected areas) in the region, (g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process, (h) whether any threatened species, population or ecological community is at the limit of its known distribution." 14 It was not suggested on this appeal that the Council erred in its application of s5A in a manner which would justify judicial review of its decision. 15 The steps taken, in general terms, were as follows: (i) a Statement of Environmental Effects was submitted with the application, which included a report dated November 1996 by Green Loaning Bio-studies Pty Limited entitled Flora and Fauna Assessment for Proposed RMT Lease Area. (ii) the Council sought and received comments from the New South Wales National Parks and Wildlife Service on the adequacy of the Green Loaning Bio-studies report for purposes of s5A and was advised by letter of 13 March 1997 that there were deficiencies in this regard. (iii) Council officers adopted the views of the National Parks and Wildlife Service and recommended to the Council meeting of 27 March 1997 that consideration be deferred pending additional information. The recommendation was adopted. (iv) as a result of the decision of Council to accept this advice the Applicant (now Respondent) obtained two additional reports as follows: · Eight Part Test for Mixophyes Balbus and Philoria SPP (ERM Mitchell McCotter June 1997) · RMT Section 5A Assessment of Flora and Fauna Components of the Site (Green Loaning Bio-studies June 1997), (v) Council officers then obtained further comment from the National Parks and Wildlife Service which reviewed the two reports. By letter of 17 June 1997, the Service accepted that the reports satisfactorily addressed its concerns, but added that Council should consider seeking an independent review of the development application and the two supporting reports. 16 It is clear that the two reports obtained in June 1997 were part of a s5A assessment, not a Species Impact Statement (SIS). No attempt was made to follow the requirements of s109 and s110 of the Threatened Species Conservation Act 1995 ("TSC Act"), which lay down detailed requirements for a SIS. 17 The Director of Environmental Services' report to the Council meeting of 26 June 1997 referred to s5A and considered that "there will be no significant effect (on species) and a Species Impact Statement is not required". Whilst this was said in the context of applying s90(3)(c3), the reference to an SIS not being required suggests that the Director also had in mind s77(3)(d1). A number of ameliorative measures with respect to impact on species were recommended as conditions. 18 The appeal raises three distinct issues: 19 (1) Was an SIS required to be prepared in accordance with Div 2 of Pt 6 of the TSC Act pursuant to the provisions of s77(3)(d) of the EPA Act? 20 (2) Did the development involve an "alteration or addition" to an existing or approved development so that it was within Pt 2 of Schedule 3 to the EPA Regulations 1994 and, therefore, was not a designated development for which an Environmental Impact Statement was required under s77(3)(d1) of the EPA Act? 21 (3) Did his Honour err in ordering the Appellant to pay costs below? 22 Relevantly to both issues (1) and (2), s77(3) provides: "77(3) A development application shall: (a) be made to the consent authority, (b) be made in the prescribed form and manner, (c) where the application is not in respect of designated development, contain, or, as may be provided by the regulations, be accompanied by, such information and particulars as may be prescribed, (d) where the application is in respect of designated development, be accompanied by an environmental impact statement in the prescribed form prepared by or on behalf of the applicant, and (d1) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, be accompanied by a species impact statement prepared in accordance with Division 2 of part 6 of the Threatened Species Conservation Act 1995. (e) be accompanied by such fee determined by the consent authority … or, where a fee is prescribed, by that prescribed fee."

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I will use 'threatened species' to refer to the whole of the statutory formulation "threatened species, populations or ecological communities, or their habitats". Species Impact Statement 23 It was common ground that there was no SIS. Talbot J rejected the Appellant's attempt to adduce evidence as to whether or not the development would be likely to affect threatened species. His Honour said: "Mr Robertson has explained to the Court that the applicant's case was that the mine and haul road will have a hydrological impact on endangered frog species and their habitat in circumstances which clearly give rise to a risk of an impact. In addition to the frog species, he asserted that there is a suite of endangered species on the site, including small ground dwelling mammals and bats, or boreal bats and owls, which the applicant said would also individually and as a group give rise to a risk of significant impact such as to require the lodgement of a SIS with the development application. As a consequence of the ruling on admissibility, the evidence was restricted to the material actually before the Council when it made the determination to grant the application of the development consent. It is not necessary for the Court to conclude that the development is likely to significantly affect threatened species and their habitat, but merely whether it was open for the Council to decide on the material before it, that an SIS was not required. Mr Robertson expressly accepted that the claim the development is likely to significantly affect threatened species must fail following rejection of the evidence." 24 His Honour's reason for rejecting the evidence was that the actual impact upon threatened species or habitat was a matter for the determination of the Council. It was not a "jurisdictional fact". His Honour referred to relevant cases and concluded: "Accordingly, in my opinion s77(3)(d1) vests in the Council the authority to determine whether the development is likely to significantly affect threatened species. The question for the court is whether, based on the material relevantly before the Council, it was reasonably open to determine the question in the way it did. (See Tasmanian Conservation Trust Inc v Minister for Resources & Anor 127 ALR 580). For those reasons the court determined that the affidavits generally contained evidence which is not relevant to the matters which the court must decide. The evidence was rejected on that ground." 25 It appears from his Honour's reasons that he regarded himself as bound to apply the reasoning of this Court in Londish v Knox Grammar School (1997) 97 LGERA 1, which he regarded as applicable to s77(3)(d1). His Honour also relied upon the decision of Stein J (as his Honour then was) in Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 and of Pearlman J in Save Blue Lagoon Beach Action Group v Kelvest Pty Limited (1993) 81 LGERA 144. His Honour had himself not followed Oshlack and Blue Lagoon in an earlier decision of Torquil Cameron v Nambucca Shire Council (1997) 95 LGERA 268, on the basis of an inconsistency between those cases and the decision of this Court in Helman v Byron Shire Council (1995) 87 LGERA 349. His Honour reasoned that the decision in Londish overcame the inconsistency that he had earlier accepted. 26 Talbot J regarded the decision of this Court in Londish v Knox Grammar School (1997) 97 LGERA 1 (subsequently applied in Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333) to be indistinguishable from the issue before him. Mr M.H. Tobias QC, who appeared for the Respondent in this Court, urged this proposition upon us as a submission. 27 Mr Tobias submitted that the issue to be determined was whether or not the development proposal in question answered a specific statutory description: i.e. "likely to significantly affect …" under s77(3)(d1). Mr Tobias' submission was that Londish was also about whether or not a particular development answered a specific statutory description, relevantly in that case, whether or not the development was an "educational establishment" or a "boarding house": the former was permissible with consent, the latter was prohibited. 28 The issue in Londish was purely a question of characterisation. The Court applied the well established principle that whether the matter under consideration fell within the meaning of an ordinary English expression was a question of fact. To say that the issue is whether or not a proposal answers a specific statutory description, identifies the issue as one of fact. It says nothing about whether or not a finding of fact by a primary decision maker can be called into question. It is not the law that the determination of whether or not something answers a statutory description cannot be a jurisdictional fact. (Sometimes called "collateral fact" or "condition precedent"). Whether or not a particular finding of fact is jurisdictional in the requisite sense, depends upon the proper construction of the factual reference in the particular statutory formulation in which it appears. 29 Londish decided that a finding of fact, being the determination of whether primary facts answer a statutory description, in the context there under consideration, was not a finding of jurisdictional fact. The reasoning in that case is not determinative of the construction of other provisions, even in the same legislative scheme. 30 In my opinion, the statutory scheme in the case of development affecting threatened species is sufficiently different from the scheme under consideration in Londish, to require separate consideration. Indeed, the entire point of the elaborate procedural mechanism that is laid down in the case of threatened species is to distinguish it from the normal case of development applications, under consideration in Londish. 31 Londish would be more obviously applicable if the issue before the Court arose under s90(1)(c3) where, amongst the considerations required to be taken into account by the consent authority, appears: "(c3) whether there is likely to be a significant effect on threatened species, populations or ecological communities, in their habitats." 32 In exercising that statutory power, the determination by a consent authority of "likely to significantly affect", is a matter incidental to the exercise of the power to grant consent. The reasoning in Londish supra, on which the applicant relied, would be more clearly relevant. 33 However, section 77(3)(d1) does not confer a power on a decision maker. It imposes a requirement on an applicant. The reasoning in Londish does not apply to such a statutory provision. 34 The issue on this appeal is whether or not the reference in s77(3)(d1) to "development … that … is likely to significantly affect threatened species, populations or ecological communities, or their habitats …" is a jurisdictional fact in the sense that if, in truth, that is the situation, no valid development application can be made without an accompanying SIS. 35 His Honour found that the determination of 'significant effect on threatened species' was not such a jurisdictional fact. Rather, it was a matter upon which the Council could err within its jurisdiction. Accordingly, evidence on the subject was not admissible. 36 If the fact in issue in the present case is a jurisdictional fact, then evidence of the existence or non-existence of that fact was admissible in the Land and Environment Court. (See e.g. R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtmen of Australia (1954) 82 CLR 54, 91-92; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178, 183-184; DMW v CGW (1982-83) 151 CLR 491, 510). Accordingly, if Talbot J erred in the construction of s77(3)(d1), his rejection of relevant evidence means that this appeal must be allowed and the matter remitted to the Land and Environment Court. 37 The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See e.g. Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact ('objectivity') and that the legislature intends that the absence or presence of the fact will invalidate action under the statute ('essentiality'). (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [91]-[93]). 38 'Objectivity' and 'essentiality' are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of 'essentiality' will often suggest 'objectivity'. 39 Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes "jurisdictional fact" as some kind of "doctrine" is, in my opinion, misconceived. The appellation "jurisdictional fact" is a convenient way of expressing a conclusion - the result of a process of statutory construction. 40 Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. 41 Where the process of construction leads to the conclusion that Parliament intended that the primary decision maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a Court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision maker (in the Wednesbury sense), but not itself determine the actual existence or non-existence of the relevant facts. 42 Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact. (See Craig Administrative Law 3rd ed, 1994, 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, 198C). Where such words do not appear, the construction is more difficult. 43 As Sir Frederick Jordan said: "When the jurisdiction of a Court is limited, the question whether a particular matter is one the actual existence of which, notwithstanding any decision of that court, is a condition of its having jurisdiction to proceed to determine the matters which lie within its general jurisdiction, or is merely one of the matters which arise for its decision in the exercise of its general jurisdiction, is frequently one of considerable difficulty. It commonly arises in relation to a statute conferring jurisdiction in which the legislature has made no express pronouncement on the subject, and in which its intention has therefore to be extracted from implications found in inferences to be drawn from the language it has used." Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289, 298. 44 The authorities suggest that an important, and usually determinative, indication of Parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker or, in some other way, necessarily arises in the course of the consideration by that decision maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions. 45 Two of the considerations which a consent authority must take into account in the determination of a development application under s90(1) of the EPA Act are: "(c2) the effect of that development on critical habitat. (c3) whether there is likely to be a significant effect on threatened species, populations or ecological communities." 46 In s90(1)(c3), the issue of "significant effect" squarely arises in the context of the exercise of a statutory power by the consent authority and accordingly must necessarily be adjudicated upon by the consent authority. The use of the words "whether there is likely to be" indicates a decision on that matter by the consent authority. This is why, as I have said above, the reasoning in Londish is more clearly relevant to s90(1)(c3). 47 However, this case is not concerned with s90(1)(c3). It is concerned with the almost identical formulation in s77(3)(d1): "if the application is in respect of development on land that is, or is part of critical habitat or is likely to significantly affect threatened species, populations or ecological communities or their habitats …". 48 Section 77 does not involve, either explicitly or implicitly, the exercise of any statutory power by a consent authority. Section 77 is directed to the making of development applications by applicants, not the making of decisions by a consent authority. 49 Section 77 lays down the requirements of an application. Such applications are referred to throughout the Act as being "determined" by the consent authority, culminating in s91(1): "A development application shall be determined by: (a) the granting of consent to that application, either unconditionally or subject to conditions, or (b) the refusing of consent to that application." 50 The making of an application by an applicant is preliminary to, and quite distinct from, the process of "determination" by a consent authority. A factual reference in a statutory formulation relating to the instigation of a statutory decision making process, is more likely, in my opinion, by reason of its extrinsic nature, to turn on an objective fact, than is a factual reference arising in, or in relation to, the conduct of the decision making process itself. 51 In the present case, the location of the relevant factual reference in a statutory formulation concerned with the requirements of an application, is a significant factor suggesting that the factual reference is jurisdictional. 52 One formulation of the relevant distinction is whether the fact referred to is: "a fact to be adjudicated upon in the course of the inquiry"

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as distinct from an: "essential preliminary to the decision making process." (Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 443). 53 See also: "(a fact) which can only be determined as part of the general inquiry into the charge which is being heard" (R v Nat Bell Liquors Ltd [1922] 2 AC 128, 158; Ex parte Mullen; Re Hood supra 300); or "matters incidental to the exercise of the discretionary powers conferred" (Tan Te Lam v Tai A Chan Detention Centre [1997] AC 97, 112); or "…canvass in a judicial forum the very questions for which the [legislative regime] specifically establishes processes" (Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 PCR 516, 539). 54 The distinction is as propounded by Sugerman J in Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31, 33: "The questions upon which a court of limited jurisdiction may find it necessary to adjudicate in the course of an inquiry before it, may be classified for present purposes into two broad categories. Some relate to matters which are extrinsic to the subject matter of the inquiry itself but, by the terms of the conferment of jurisdiction, are essential to the competence of the court to undertake the inquiry and to carry it to a valid conclusion. Others, although related to the validity of the court's conclusion, are related to validity in a different sense. As to these validity refers only to the correctness of the court's conclusion, in the very inquiry which it was authorised to undertake, as an adjudication upon questions of fact and law which were properly before it for determination upon that inquiry." (Emphasis added) 55 In Australian Heritage Commission v Mount Isa Mines Ltd (1996-97) 187 CLR 297, the High Court rejected a submission that the exercise of a power to enter a place on the Register of the National Estate under s28 of the Australian Heritage Commission Act 1975 (Cth) turned on a jurisdictional fact relating to the actual quality of the land. However, the power was expressed in terms of whether the Commission "considers" that a place should be registered. Of course, every case turns on the particular statutory regime. 56 One case involving an application was Manning v Thompson (1976) 2 NSWLR 380 (Yeldham J); (1977) 2 NSWLR 249 (Court of Appeal); (1979) 1 NSWLR 384, (1979) 53 ALJR 582 (Privy Council). It was held that a decision by Licensing Magistrates that an application for a liquor licence was impermissible, was susceptible to review by way of mandamus. The statutory provision was in the form - "no application … shall be made" in a certain factual situation. That situation was held to constitute a jurisdictional fact. The factual error was the defective measurement of distance between two premises. 57 Mahoney JA, whose reasoning in this respect was upheld by the Privy Council ((1979) 1 NSWLR 388E; 53 ALJR, 583G) said with respect to the Licensing Court: "…by making the non-existence of the refusal a condition of the right of an applicant to make an application rather than of the Court to grant the application, the draftsman has, in my opinion, indicated the statutory intention that it is not for the Court finally to determine the relevant facts". (1977) 2 NSWLR 258-259 58 His Honour came to that conclusion, even after applying the principle of the law of statutory interpretation that, in the case of an inferior court, references to fact are not jurisdictional, "unless the intention is clearly expressed" (Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369, 391). However, no such rule of construction applies to the exercise of statutory powers by administrative decision makers. (Sutherland Shire Council v Finch (1970) 91 WN (NSW) 346, 405-406 per Mason JA). 59 Another case dealing with alleged defects in an application for the exercise of a statutory power is Ex parte Tooheys Ltd; Re Butler (1934) 34 SR (NSW) 277. A statutory provision requiring an application to be made within three months was held to be an "essential preliminary" (283). It was not protected by a privative clause which made decisions of the relevant tribunal final. (The terminology "essential preliminary" finds its origins in Colonial Bank of Australasia v Willan supra 443). 60 In a joint judgment, the High Court applied the reasoning of Jordan CJ to another statutory regime, with respect to which it held that the deposit of plans of proposed premises with a Licensing Court, as part of the process of application for approval by the Court, was also an essential preliminary to the jurisdiction of that Court (Minahan v Baldock (1951) 84 CLR 11). 61 The next matter which suggests that the factual reference under consideration is intended to be jurisdictional is that within s77(3)(d1) itself, no distinction is drawn between the phrase "is critical habitat" and the phrase, relevant to this case, "is likely to significantly affect threatened species" etc. Where the section applies to "critical habitat", no issue arises of how the matter appears to a consent authority. 62 By s4(1) of the EPA Act "critical habitat" has the same meaning as in the TSC Act. By s4 of that Act, "critical habitat" means habitat declared to be critical habitat under Pt 3. That Part consists of an elaborate decision making process culminating in a notice published in the Gazette (s37); the preparation of maps of the location of critical habitat which must be published in the Gazette (s53) and served on interested public and private persons (s54); and the maintenance of a register of declarations and maps, which register is open for public inspections (s55). No issue of "appearance" or "opinion" or "satisfaction" can arise in this respect. Whether or not a development is proposed to occur on critical habitat is entirely a matter of objective fact. 63 In all relevant respects the formulation "likely to significantly affect" is equated to "critical habitat" in s77(3)(d1) and other sections. In both cases the concurrence of the Director-General of National Parks and Wildlife is required in identical terms (s77A(1) and (2)). So is the identification of circumstances in which such concurrence is not required (s77B(2)) and of circumstances in which a Minister is a determining authority (s112B(1)). (See also s112C(1)). 64 It is unlikely that Parliament intended any significant difference in the statutory treatment between the two cases. Such would arise if the Respondent's submissions are correct. 65 In the parallel preceding legislative scheme under the Endangered Fauna (Interim Protection) Act 1991, there was no equivalent to the provision for "critical habitat", although the "likely to significantly affect" test was the subject of almost identical sections equivalent to s5A (then s4A), s90(1)(c3) (then s90(1)(c1)), and the balance of s77(3)(d1). 66 When Stein J considered the preceding scheme in Oshlack v Richmond River Shire Council supra, to which Talbot J referred, the significant textual indication from the equivalence between "critical habitat" and the "likely to significantly affect" test was not available to his Honour. In any event, it does not appear that a jurisdictional fact submission was made to his Honour in that case. The issue is posed only in terms of a test of reasonableness (223) and his Honour does not deal with any such submission, nor does he refer to the relevant case law (233-235). (The other case to which Talbot J referred, Save Blue Lagoon supra, was analogous to Londish and is not relevant to the legislative scheme under consideration). 67 The next textual indication that a "decision" by a consent authority under s77(3)(d1) that a development is not "likely to significantly affect threatened species" is not determinative, is found in the provisions for concurrence by the Director-General of National Parks and Wildlife, or the Minister administering the TSC Act, who may elect to act in the place of, or review the decision of, the Director-General. 68 Section 77A(2) states: "(2) If development consent is required for development and the development is likely to significantly affect a threatened species, population or ecological community, or its habitat, consent must not be granted without the concurrence of the Director-General of National Parks and Wildlife." 69 Section 77C of the Act, which is the equivalent of s5A in the case of s77A, states in part: "In deciding whether or not concurrence should be granted under s77A, the Director-General of National Parks and Wildlife ……must take the following matters into consideration: (a) any species impact statement that accompanied the development application." 70 The factual references in s77(3)(d1) and s77A(2) are identical: "development is likely to significantly affect …". Both the consent authority and the Director-General have to 'decide' whether this is so, when they are asked to exercise their respective powers. 71 The construction propounded by the Respondent would give rise to a tension in the operation of the statutory scheme. A consent authority could decide that there was no "substantial effect" and deal with the development application as valid, even though it was not accompanied by an SIS. The Director-General, however, could take a different view on "substantial effect", but not have available to him an SIS for the purposes of deciding whether or not to concur. (Note s77C(a) refers only to an SIS, if any.) 72 The tension I have identified is relieved if the reference to "likely to significantly affect" is given the same meaning in both sections. That requires the words to be treated as an objective fact, not as references to the respective opinions of the consent authority in s77(3)(d1) and of the Director-General in s77A(2). The parallel trigger provisions based on "critical habitat" in s77(3)(d1) and s77A(1), obviously have the same meaning in each section. 73 The purpose of the legislative scheme is of considerable significance in determining the issue before the Court. The consequence of the factual finding is that an applicant for consent must prepare an SIS, in order to have the application 'determined'. An SIS enables the decision making process of the consent authority to be better informed. This occurs both directly, by the supply of additional detailed information to the decision maker in accordance with ss110-113 of the TSC Act. It also occurs indirectly, by making such information available to those who may be minded to make submissions to the consent authority. 74 The statutory scheme of public consultation is: (i) The consent authority must give notice to owners or occupiers of land who "appear to it" to be adjoining or detrimentally affected, and to public authorities who, "in the opinion of the consent authority" have an interest (s84(1)(a)). (ii) The consent authority must give public notice as required (s84(1)(b) and (c)). (iii) Any person may inspect the application and accompanying documents, relevantly, the SIS, if any (s86). (iv) Any person may make a submission to the authority (s87). (v) A consent authority may not determine an application until after the period for the making of submissions has expired (s88). (vi) Submissions under s87 are amongst the list of matters which the authority is required to consider (s90(1)(p)). 75 The significance of the process of public consultation was emphasised in this Court's decision in Helman and the authorities relied on therein, to which I will refer in detail below. The same approach had been taken as long ago as R v Arkwright [1848] 12 QB 962; 116 ER 1130. The obverse position arose in Australian Heritage Commission v Mount Isa Mines supra 305-306, where a feature of the statutory scheme which was said to indicate that the primary decision maker could conclusively determine whether a place should be registered, was that the decision could only be made after a process of public consultation. 76 It can readily be seen that an SIS, when required, plays a critical role in the quality of the decision making process, by ensuring that detailed information is available to primary decision makers in a systematic and ordered way. This, in my opinion, makes it more likely that the legislature intended the circumstances which lead to the requirement to prepare an SIS, to be both objectively ascertained and essential. 77 The significance attached to an SIS, when required, is confirmed in the mandatory form of the introductory words of s77(3): "A development application shall …". 78 On the issue of 'essentiality', it is material to point out the high threshold that must be satisfied before any issue of the preparation of an SIS arises. 79 In the case of "critical habitat", the elaborate formal regime under Pt 3 of the TSC Act turns on identification of an area of land "that is critical to the survival of [a] species, population or ecological community". In the case of effects on the relevant species, it must be "threatened", i.e. it has been precisely specified in the lists comprising Schedules 1 and 2 of the Act, with an elaborate statutory procedure for amending the Schedules (ss10-25 of the TSC Act), which involves expert determination that a species is "endangered" or "vulnerable", as defined in ss10-14: "10. A species is eligible to be listed as an endangered species if, in the opinion of the Scientific Committee: (a) it is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival or evolutionary development cease to operate, or (b) its numbers have been reduced to such a critical level, or its habitats have been so drastically reduced, that it is in immediate danger of extinction, … … … 11. A population is eligible to be listed as an endangered population if, in the opinion of the Scientific Committee, its numbers have been reduced to such a critical level, or its habitat has been so drastically reduced, that it is in immediate danger of extinction and it is not a population of a species already listed in Schedule 1, and: (a) it is disjunct and at or near the limit of its geographic range, or (b) it is or is likely to be genetically distinct, or (c) it is otherwise of significant conservation value. 12. An ecological community is eligible to be listed as an endangered ecological community if, in the opinion of the Scientific Committee: (a) it is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival or evolutionary development cease to operate, or (b) it might already be extinct. 13. A species is eligible to be listed as a species that is presumed extinct at a particular time if, to the knowledge of the Scientific Committee, it has not been definitely located in nature during the preceding 50 years despite searching of known and likely habitats during that period. 14. A species is eligible to be listed as a vulnerable species if, in the opinion of the Scientific Committee, the species is likely to become endangered unless the circumstances and factors threatening its survival or evolutionary development cease to operate." 80 As in the case of critical habitat, the statutory threshold which must be reached in the case of the 'substantial effect' test is a high one and reflects the public policy of the need to preserve biological diversity, and other objects of the TSC Act identified in s3 of that Act: "(a) to conserve biological diversity and promote ecologically sustainable development, and (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and (f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management." 81 The purpose of an SIS in the legislative scheme strongly suggests that the occasion for its creation is a jurisdictional fact. The consent authority's opinion as to the existence of that occasion is not determinative, because an SIS is not only directed to informing a consent authority. It is also directed at informing both those who may make submissions and the Director General of National Parks and Wildlife. 82 The present case has the unusual feature that a virtually identical form of words to that found in s77(3)(d1) occurs at a later stage of the legislative scheme, (s90(1)(c3)), when a discretionary decision is plainly involved. The difference in treatment is, however, entirely explicable because of what follows from the relevant fact of "likely to significantly affect" at the two different stages of the process of granting or refusing consent. At the s90 stage the relevant fact is one of many considerations to be taken into account. At the s77 stage the consequence is the obligation to prepare an SIS. 83 The only textual indication that suggests that a 'decision' of any character arises under s77(3)(d1) is the use of the terminology of 'decision' is s5A of the EPA Act which I have set out fully above. I repeat the introductory words: "For the purposes of this Act and, in particular, in the administration of sections 77, 90 and 112, the following factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats…". (Emphasis added) 84 The terminology of 'decision' has a clear application in the case of s90, which is concerned with a list of considerations which the consent authority is required to consider. Similarly in the case of s112, a decision is required by the determining authority. 85 In the context described as "in the administration of section 77", there is no express reference to a 'decision'. However, facts, even where they are described as "objective", do not have an existence independent of their identification by some process of human agency. An administrative decision maker often has to determine even jurisdictional facts, but does not do so conclusively. This has been recognised as long ago as Bunbury v Fuller (1853) 9 Ex 111, 140; 156 ER 47, 60). 86 As Fullagar J said in R v Blakeley supra, in a passage which has frequently been referred to in subsequent High Court decisions: "Generally speaking, when a tribunal, other than a superior Court in the technical sense, is called upon to exercise jurisdiction, it must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction invoked. That question may depend on questions of law or questions of fact or on questions of both law and fact. …But the important point is that the decision or finding with regard to the existence of jurisdiction, whether it be affirmative or negative, stands in a radically different position from a decision or finding given or made within jurisdiction on the merits of the case. The latter is conclusive and binding subject only to any appeal that might be given: if no appeal is given, it is absolutely conclusive and binding. The former is not conclusive or binding at all. It is open, if it be affirmative and wrong, to prohibition. It is open, if it be negative and wrong to mandamus." (90-91) 87 A consent authority may be called upon to decide whether or not it has a valid application before it, by reason of any of the factors found in s77(1) and s77(3). In making such a decision with respect to s77(3)(d1), it must take into account the relevant factor or factors in s5A. The phrase "in deciding" in s5A, accordingly, has content with respect to s77, but that phrase alone does not suggest that any such decision is determinative. 88 One of the considerations put forward against a conclusion that the factual reference is a jurisdictional fact, is that the obligation to prepare an SIS is triggered by a formulation requiring the exercise of a broad judgment on a matter of potentially significantly disputation. The list of species so described is determined by the content of Schedules 1 and 2 of the Act. However, whether a development "is likely to significantly affect" such a species, is not so determinate. 89 The fact that a matter of judgment of this character is involved does suggest that it is less likely to be intended by Parliament to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ. Nevertheless, the proper construction of the statute may be that Parliament did so intend. So, for example, the test of whether a report was "substantially favourable" to an employee was found to be an objective one. (See Sutherland Shire Council v Finch (1969) 123 CLR 657, 663, 666. See also below (1970) 91 WN (NSW) 396 at 405-407 per Mason JA). 90 In the present case, the primary decision maker either has, or has ready access to, a relevant body of expertise and experience. However, the Court in which proceedings are taken also has considerable experience, particularly in its Class 1 jurisdiction, of making judgments of this character. Indeed, in a Class 1 case, i.e. if an unsuccessful applicant brings an appeal to the Court, the Court may have to make the very same judgment, because the Court itself must take into account s90(1)(c3) of the EPA Act. The nature of the judgment, which may be entitled to significant weight in another judicial review context, is not of such significance in the present context. 91 Another factor, relevant to determining the intention of Parliament, is the inconvenience that may arise from classifying a factual reference in a statutory formulation as a jurisdictional fact. Statutes are construed on the basis that Parliament did not intend to cause inconvenience, although it can do so, and often has. Was it the intention of Parliament to invalidate a development application which was not accompanied by a species impact statement when, on an objective test, it should have been? 92 The inconvenience arises when a consent authority decides that an SIS is not required and this decision is subsequently found to be wrong. In principle, the balance of the decision making process, and any decision to grant consent, is thereafter susceptible to being set aside. 93 However, remedies on judicial review are discretionary and may be refused, depending on the circumstances, including delay. The further a decision making process has gone, in reliance on the validity of a decision not to require an SIS, the more difficult it will be for an applicant to obtain relief. 94 Taking all these factors into account, I have concluded that the decision as to whether or not an SIS is required plays such a significant role in the legislative scheme that it is appropriate to describe it as an "essential condition" (Craig v South Australia (1994-95) 184 CLR 183, 179) or "essential preliminary" (Colonial Bank for Australasia v Willan supra 443; Ex parte Toohey; Re Butler supra 283; Minahan v Baldock supra 11). It was accordingly a jurisdictional fact which the Land and Environment Court was obliged to decide for itself. 95 I am fortified in my conclusion on the construction of s77(3)(d1) by the decision of this Court on the parallel preceding regime. The judgment in Helman v Byron Shire Council supra was delivered on 4 August 1995. The Threatened Species Conservation Bill (No 2) was introduced into the NSW Parliament on 7 December 1995. There was plenty of time for those responsible for its drafting to adapt to the reasoning of this Court in Helman. 96 In that case the Court considered s77(3)(d1) which at that time provided: "(d1) (where the application is in respect of a development which is likely to significantly affect the environment of protected fauna) be accompanied by a fauna impact statement in accordance with section 92D of the National Parks and Wildlife Act 1974." 97 Similarly, s90(1)(c2) of the EPA Act then read: whether there is likely to be a significant effect on the environment of protected fauna. 98 The provision for fauna impact statements and the insertion of the original s77(3)(d1) into the EPA Act, were both made by the Endangered Fauna (Interim Protection) Act 1991. As the name implies, this was an interim arrangement, eventually superseded by the TSC Act 1995, which substituted the species impact statement for the fauna impact statement and replaced s77(3)(d1) with its new, and currently relevant, form. The words "likely to significantly affect" were retained. 99 In Helman, Handley JA, with whom Kirby ACJ and Priestley JA agreed, said: "Section 77(3) defines the form and content of such applications. Its requirements are mandatory in terms, being governed by "shall" in each case. However the content of these requirements vary. They include matters of form ("(b) … made in the prescribed form") and cost ("(e) a fee determined by the authority or any prescribed fee"). They also include matters of substance especially in (d) and (d1) which require certain applications to be accompanied by an environmental impact statement or fauna impact statement." (355-356) 100 His Honour went on to refer to the process of public consultation which, in substance, was then as I have set out above. 101 In Helman, a fauna impact statement had been made available to the Council, but only after the public consultation process had taken place. The issue before the Court concerned the effect of the failure to make the statement available to the public. 102 Handley J referred to the judgment of Stephen J in Scurr v Brisbane City Council (1973) 133 CLR 242 at 251-252 where his Honour had identified the purpose of public notice in town planning legislation as being to ensure that the Council had the benefit of the views of objectors, before making a decision. Handley JA concluded: "Section 77 imposes on applicants, in mandatory terms, obligations in the nature of conditions precedent which are directed to achieving the purposes identified by Stephen J. Section 88 prohibits a consent authority from determining a development application until after the close of the period for objections. As in Scurr's case compliance with the statutory requirements is a condition precedent to any consideration of the application by the Council. In the result, late lodgment of the fauna impact statement by-passed the statutory requirement that such a document be available for inspection and consideration by the public. Compliance would have enabled relevant and better informed objections to be lodged. While the decision maker had the benefit of an appropriate fauna impact statement, the objectors had no opportunity to consider it or make submissions based on it." (358-359) (Emphasis added) 103 Handley JA went on to refer to the comments of Wilson J in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, 506 as relevant to the construction of the provisions of the EPA Act: "Substantial compliance with the Act and the ordinances is a condition precedent to jurisdiction to grant consent in relation to - the contents of the application …; the advertisement of the application. …; and service of notice of the application on abutting owners. … The imperative underlying my conclusion is the importance of a faithful adherence to the provisions of the Act and the ordinances so that the interests of all parties concerned … are protected." (Emphasis added) 104 Handley JA went on to list a number of cases on the EPA Act as authority for the proposition: "Decisions on the Act have established that substantial compliance with provisions of this nature including the obligation to prepare or submit an environmental impact statement, is a condition of validity." (359) (Emphasis added) 105 His Honour applied (355) the principles in Tasker v Fullwood (1978) 1 NSWLR 20, 23-24. This approach has now been authoritatively affirmed by the High Court in Project Blue Sky supra para 93. 106 The legislation under consideration in Helman is not relevantly distinguishable from that now under consideration. The precise point argued before us was not taken before the Court in Helman, because the Council did have a fauna impact statement. Nevertheless, the reasoning of the Court in Helman clearly indicates that an SIS, when required, is an "essential preliminary" or "essential condition" to a valid decision making process. 107 The reasons given by the Court in Helman for so treating such a statement - specifically the references to "condition precedent" - strongly suggest that a consent authority cannot conclusively determine this issue. The reasoning of "condition precedent" and "condition of validity" in Helman was plainly available to the drafter of the 1995 Act, who employed the same terminology of "likely to significantly affect". That reasoning was a clear indication that this formulation involved a factual reference which must exist in fact, and that the opinion of a consent authority would not be determinative of that issue. 108 In my opinion, the reasoning in Helman is inconsistent with a construction of s77(3)(d1) that the opinion of a consent authority as to the need for an SIS is determinative. On any view, the conclusion that the circumstances in which an SIS was required constituted a jurisdictional fact, was so likely after Helman, as to call for clear legislative overruling in the new legislation, if that was the intention. As I have said, my conclusion that s77(3)(d1) involves a jurisdictional fact, is reinforced by the adoption in the 1995 Act of the formulation considered in Helman. 109 The appeal should be allowed. Designated Development 110 The second issue raised by the Appellant asserts that a similar defect occurred by reason of the failure to obtain an Environmental Impact Statement for the proposed development pursuant to the requirements of s77(3)(d1). The Appellant submitted that the proposal constituted "designated development" within that paragraph and accordingly that such a Statement was required. It was common ground that no such Statement had been prepared for the amendment proposal. It was also common ground that, prima facie, the proposal constituted designated development. 111 In Pt 1 of Schedule 3 of the Environmental Planning and Assessment Regulations 1994 the following relevant provision occurs: "Development for the undermentioned purposes or development of the undermentioned types is designated development. ……… Mines that mine, process or handle minerals (being minerals within the meaning of the Mining Act 1992 other than coal or limestone) and: 1 Disturb or will disturb a total surface area of more than 4 hectares of land (associated with a mining lease or mineral claim or subject to s8 notice under the Mining Act 1992) by: (a) clearing or excavating or, (b) constructing dams, ponds, drains, roads, railways or conveyers, or (c) storing or depositing overburden ore or its products or tailings, …." 112 Prima facie, the development fell within this provision. However Pt 2 of Schedule 3 cl 1 provides: "1 Is there a significant increase in the Environmental Impacts of the total development? Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development." 113 The Respondent council successfully contended before Talbot J that the development application before the Council was in fact an "alteration or addition to development" within the meaning of this clause. There is no appeal from this decision. 114 The Appellant contends that Talbot J committed an error of law by applying this provision in circumstances in which the "alteration or addition" occurred on different land to that the subject the original development. 115 It is only necessary to look at the definition of mines for the purposes of designated development, to conclude that this proposition is untenable. "The total surface area of more than 4 hectares of land", which is within the definition of mines, can include not only the mine site itself, but also the area on which dams, roads, railways or conveyers are constructed, as well as the area in which storing or depositing of overburden or ore or tailings occurs. This reference to the extended infrastructure of the mine indicates there is no requirement that the reference to a "mine" should be confined to a single mining lease. It is a common occurrence in Australian mining practice that a number of mining lease applications or mining leases are combined together for purposes of a single project. 116 Nothing in the terminology of Pt 2 of Schedule 3 indicates a restriction of the character for which the Appellant contends. Clause 1 directs attention to the "increase" in the "environmental impacts" by a comparison of the "total development" and the "existing or approved development". It does not matter, relevantly, whether an "existing or approved development" comprises a number of distinct mining leases. 117 Nor is there any warrant for treating the further development application which requires the new consideration, to be restricted to the same mining lease. The relevant restriction is whether or not the application can be described as an "alteration or addition" to the existing or approved development. The relationship amongst different land titles will no doubt play a role in determining that issue. 118 This ground of appeal should be dismissed. Costs 119 The third issued raised on appeal concerned his Honour's refusal to make a special order for costs of the kind made in Oshlack. As I believe the appeal should be allowed, this issue does not arise. 120 The Respondent submitted that if the Appellant was successful and the matter was remitted to the Land and Environment Court, the costs of the first trial before Talbot J should be made costs in the cause. This submission should be rejected. 121 The only reason why there will have to be a new trial is because the Respondent successfully objected to the admission of the evidence on the issue of substantial effect. If his Honour had made findings of fact on this issue, in the alternative to the view he took on the law, then, subject to any appeal from such findings, no question of a second trial would have arisen. Orders 122 The orders I propose are: 1 Appeal allowed. 2 Remit the matter to the Land and Environment Court to be determined in accordance with these reasons. 3 The Respondent pay the costs of the Appellant in this Court and in the Land and Environment Court.

TIMBARRA PROTECTION COALITION INC v ROSS MINING NL & ORS

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