TRANSPORT ACTION GROUP AGAINST MOTORWAYS INC v ROADS & TRAFFIC AUTHORITY & ANOR [1999] NSWCA 196 | Case summary

The difference between the original and the changed activities was not so radical as to preclude a modification 73 Bignold J found that the omitted changes were not themselves the subject of any EIS but were the subject of extensive environmental assessment (i) by the RTA in its Representations Report; (ii) by the Director General in her s115C Report; and (iii) by the Minister in granting approval pursuant to s115B(2). The appellant contended that an EIS was also required, whereas the respondents invoked s112(4)(b). 74 In the context of the challenge to the RTA's reliance upon s112(4)(b)(i), Bignold J held that the "changed activity" was not a significantly different activity from the "original activity". Expressing the same finding in positive language, he held that the changed activity was substantially the same as the original activity. 75 This finding was challenged by the appellant. It was submitted that the issue of "modification" involved a jurisdictional fact (cf Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8). The challenge provoked a contention by the respondents that the challenged decisions were valid because it was open to the RTA to conclude that the omitted works were modifications within the ambit of s112(4)(b)(i) (cf Londish v Knox Grammar School (1997) 97 LGERA 1). 76 I find it unnecessary to consider whether s112(4)(b)(i) involves a jurisdictional fact as discussed in Timbarra, because I am entirely in agreement with Bignold J. The appellant's factual challenge would fail even if the requirement of a "modification" were a jurisdictional fact. It was common ground that "modify" was aptly defined in the Shorter Oxford Dictionary as "to alter without radical transformation" (see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474). Section 112(4)(b)(i) confers upon a determining authority which is satisfied that an activity will detrimentally affect the environment the power, where it is the proponent of the activity, to "modify the proposed activity" without preparing a fresh EIS. In this context "proposed activity" means the activity originally proposed by the determining authority in respect of which it had examined and considered an EIS. So much was common ground. In this context, "proposed activity" must relate to the composite activity in respect of which an EIS had previously been prepared, considered, notified and exhibited in accordance with s112(1)(a)-(c). 77 Viewed singly and cumulatively, the omitted changes summarised above did not involve the radical transformation of the original activity. They represented altered means of carrying out the same proposal, being that of providing a 4-lane motorway between the same two points and covering for the vast proportion of its length the identical area. Historically, the changes were linked with the original activity in that they arose out of the public responses to the exhibiting of the 1996 Supplement. The changes were matters of relative detail in the context of the activity taken as a whole. They did not radically transform it. Whether or not they could be characterised as "substantial" (as the appellant submitted) is beside the point. The changes reduced the detrimental effect of the proposed activity 78 Bignold J also found that the changes made to the exhibited proposal constituted modifications "so as to eliminate the detrimental effect of the activity". His Honour had regard to the findings he made about the nature and extent of the changes. And he indicated that the finding was put beyond doubt by his acceptance of Mr Forward's evidence to the effect that, when making his decision on behalf of the RTA on 14 July 1997, he formed the opinion that each of the relevant changes would reduce the detrimental environmental effects of the proposed activity. 79 In my view his Honour was entitled to draw these conclusions about the changed activity. I shall address below the appellant's submissions as to specific legal errors into which it is said his Honour fell. However, confining myself for the moment to the impact of the modification, I believe that Bignold J was fully entitled, if not bound, to reach this conclusion. It bears remembering that the decision of the RTA on the merits cannot be made the subject of administrative law review unless it involves jurisdictional error or Wednesbury unreasonableness. 80 In his affidavit Mr Forward explained the matters referable to each relevant component of the changed activity which he took into account in forming the view that the change reduced the detrimental effect of the activity (see above). Although the appellant challenges this, there is no reason why account should not be taken of the conditions under which the changed activity will take place (so long, at least, as those conditions are not themselves invalid). To seek to distinguish between the formulated changes and the conditions to which they are subject, and to argue that only the former can be treated as a modification, is a semantic quibble that must be rejected. There is no difference in substance between a modification expressed as: Instead of a four lane freeway there will be a two lane freeway. and a modification expressed as: The freeway will only proceed subject to reduction from four to two lanes. All of the conditions form part of the material evidencing the nature of the changed activity which it is the present intention of the RTA to carry out. 81 During argument it was conceded that the power to modify conferred by s112(4)(b)(i) included the power to modify conditionally. This concession was properly made (cf North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475-6). It has the corollary that it is the conditional change that is to be tested by the inquiry as to whether it was a modification "so as to eliminate or reduce the detrimental effect of the activity". The situation is quite different from that addressed by Stein J in Drummoyne MC v Maritime Services Board of NSW (1991) 72 LGRA 181 at 192 (upon which the appellant relied). That case involved determining whether an activity was likely to significantly affect the environment, thereby triggering the obligation of environmental assessment by EIS imposed by s112(1). In that context, it was held that attention must be focussed only upon the formulated "physical activity", and that it is impermissible to have regard to conditions designed to mitigate environmental impact. Stein J held (at 192): In my opinion, a determining authority cannot determine the question of whether a proposed activity is likely to significantly affect the environment by reference to the imposition of certain conditions which may have the effect of mitigating the environmental impact. In the light of my comments in par 80, I prefer to reserve my opinion as to the correctness of this decision. But the present situation is entirely different once it is recognised that the power to modify pursuant to s112(4)(b)(i) may be exercised conditionally. Indeed, the imposition of conditions confining or controlling the way in which the proposed activity is carried out may be cogent evidence that the modification is reducing the detrimental effect of the activity. 82 Bignold J made findings referable to Mr Forward's evidence referable to the RTA decision of 14 July 1997. Some of the conditions to which that decision was subject are more open-ended than the tighter conditions imposed in December at the direction of the Minister. But this does not remove the probative force of Mr Forward's evidence because the December decision was itself a reformulation, a modification if you wish, of the July decision. The only changes between July and December with which this appeal is concerned are the (tighter) set of conditions imposed by the Minister on the advice of his Director-General. Accordingly, Mr Forward's assessment remains relevant on the issue of whether the (conditional) modification in December 1997 was "so as to reduce or eliminate the detrimental effect of the activity". Subject to the specific arguments to which I now turn, the challenge to the decisions on the basis that they do not reduce the detrimental effect of the proposed activity must fail. The scope and function of s112(4)(b)(i): general remarks 83 The appellant accepts that the power to modify a proposed activity conferred by s112(4)(b)(i) is not conditioned upon compliance with s112(1)(a)-(c). This concession was properly made having regard to the location of subsection (4) in the section. This location confirms that the purpose of s112(4) is to enable ameliorative changes to be imposed in response to representations following exhibition of an EIS so long as the changes are to eliminate or reduce the detrimental effect of the proposed activity. Subsection (4) is an exception, but within its limited sphere of operation it takes precedence (cf subsection (6)). And the exception exists inter alia in order to give effect to information in response to the exhibition of the EIS. 84 The following can be said about the scope of subsection (4). • Subsection (4) is, in terms, an enabling provision. But in reality it has a more limited operation. Section 112 (like Part 5 as a whole) assumes that a determining authority has power to carry out the relevant activity. It operates in a context where development consent is not required. Subject to its terms, Part 5 assumes that determining bodies will act as their own consent authorities. • The powers conferred by the subsection are triggered by a determining authority being satisfied that the activity in its original form will detrimentally affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats. • In the case of a proponent, the power of modification conferred by s112(4)(b)(i) relates to "the proposed activity", ie the original activity (as referred to in subsection (1)). The language used, its context in s112 as a response to the outcome of the earlier subsections, and the relevant power ("modify") all confirm this. • "Modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 421; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474). • In the case of a modification by a proponent this must be done "so as to eliminate or reduce the detrimental effect of the activity on the environment" etc. 85 I do not understand these propositions to be in dispute. The debate focussed upon whether the power to modify is relevantly circumscribed more closely than indicated by the definition of "modify" approved in the cases cited. The competing submissions as to the scope of s112(4) present the Court with a choice between a broader and a narrower approach. The narrower approach would exclude modifications which, though otherwise falling within the literal scope of the subsection, would see the activity as modified having a detrimental effect not addressed in the EIS. The appellant submitted that the narrower approach would ensure that there is compliance with the principles of procedural fairness and that freshly discovered environmental impacts are subjected to requisite and appropriate environmental assessment. 86 The appellant submitted that subsection (4) should be construed narrowly. In my view, addition of an adverb such as "narrowly" is unhelpful. What is clear is that, like all qualifications, subsection (4) cannot be permitted so broad a scope that would see the exception gobbling up the general provision. And there is every reason why the subsection should be construed in context and in the light of the EPA Act's stated objects (s5). However, the objects favouring community participation and efficient resource management create a tension in this context. While efficient decision-making should be well informed, the requirement to retrace the loop involved in fresh compliance with s112(1)(a)-(c) (in a situation which ex hypothesi involves a modification with ameliorative purpose) is not without social and financial cost. 87 I turn to the particular limitations on s112(4) that were urged by the appellant. Is the scope of s112(4) constrained by the principles of procedural fairness? 88 One of the appellant's principal submissions was that subsection (4) should be construed so that it ensures that the principles of natural justice or procedural fairness qualify the exercise of the power of modification. Reliance was placed upon the general principle stated by Mason J in Kioa v West (1985) 159 CLR 550 at 584 and the particular application of that principle by Handley JA in Helman v Byron Shire Council (1995) 87 LGERA 349 at 358-9 . The particular component of the changed activity that was said to involve contravention of that principle was the Turrella exhaust stack. This had not been part of the original proposal and no warning had been given in the 1996 EIS in relation to the concept of a single exhaust stack erected in a wholly new location, affecting an entirely new group of citizens. 89 It is now settled law that, when a statute confers power to destroy, defeat or prejudice the rights, interests and legitimate expectations of a person, the rules of natural justice or procedural fairness regulate the exercise of that power unless excluded by "plain words of necessary intendment" (Annetts v McCann (1990) 170 CLR 596 at 598). In determining whether there is a clear manifestation of a contrary intention, the courts look to the text of the statute, its subject-matter, scope and purpose (Kioa at 619 per Brennan J). Such intention is not to be inferred from the presence of rights which are commensurate with some of the rules of natural justice (Annetts at 598). The very fact that the principles of procedural fairness are flexible in their content cautions against finding a statutory indication sufficient to exclude the principles altogether. Nevertheless express words of exclusion are not essential. 90 One finds statements in older cases suggesting that an obligation to afford procedural fairness is excluded where the power in question can be characterised as legislative rather than administrative or executive (see eg Bates v Lord Hailsham of St Marylebone [1972] 1 WLR 1373 at 1378). However the High Court has made it clear that procedural fairness does not turn upon a simple characterisation exercise of this nature (Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 at 416, 432; Kioa at 609). Nevertheless, acts of administrators which affect persons merely as members of the public or a class of the public will not be subject to the principles of procedural fairness, at least where "policy" or "political" decisions are involved (see Re Gosling (1943) 43 SR(NSW) 312 at 318; Mutton v Ku-ring-gai MC [1973] 1 NSWLR 293 at 241-3; Salemi v MacKellar (No 2) (1977) 137 CLR 388 at 452; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653. See also Gardner v Dairy Industry Authority [1977] 1 NSWLR 505 at 533-4). 91 In Kioa at 584, Mason J qualified his recognition of a common law duty to accord procedural fairness in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. He expressed the qualification this way: But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision: "…which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a 'policy' or 'political' decision and is not subject to judicial review". (The passage quoted is from Salemi (No 2) at 452 per Jacobs J) 92 A number of cases discuss the application of these principles in the context of planning schemes and local government powers which are exercised in a general context but which bear with particular force upon individuals or groups of individuals. 93 In Haines v Annwrack Pty Ltd (1980) 39 LGRA 404 the question at issue was whether the rules of natural justice applied to the making of an interim development order by a minister. The respondent owned land in the City of Penrith for which it had obtained subdivision approval permitting subdivision into 46 allotments, each containing not less than 10 hectares. Less than six months later the Minister negated the approval by making an interim development order. The order prescribed a minimum allotment size, on subdivision, of 40 hectares. It was contended that the respondent was denied natural justice in not being notified of the Minister's intention to make the order and not being afforded the opportunity to be heard before the order was made. Although the order applied more generally than to the respondent's land, it was clear on its face as having been intended to set at nought the approval previously obtained by the respondent. The Minister's interim development order went further, in that that it prohibited subdivision of the respondent's land even though it otherwise permitted limited development on previously approved subdivisions. 94 Hope JA's reasons (at 431-3) express the grounds upon which the Court of Appeal rejected this contention. His Honour contrasted the detailed provisions to be found in Divisions 1-3A of Part XIIA of the Local Government Act 1919 which gave persons who may be adversely affected by a proposed planning scheme an opportunity to be heard. No such opportunity was given by Division 7 relating to interim development orders. Notwithstanding the capacity of such an order to freeze the development of particular land, Hope JA regarded the contrast between Divisions 1-3A on the one hand and Division 7 on the other as impliedly negating the right contended for. It is important to observe that no question of legitimate expectations was involved. (Nor is that principle invoked in the present case.) 95 In Fay v The Roads and Traffic Authority of New South Wales (No 2), Court of Appeal, unreported 22 August 1991 this Court was addressing a decision of the RTA to close a median strip so as partly to prevent vehicle access from one road to another. A decision to embark upon this activity attracted the obligation in s111(1) of the EPA Act requiring the EPA to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity". The appellant Mr Fay was one of a limited group of residents of Mosman who would be particularly inconvenienced by the closure of a gap in the median strip. 96 The decision in the Court of Appeal turned ultimately upon the finding that the appellant had had an opportunity to put the substance of his objections to the RTA and had had his objections considered by the RTA before it made its decision. The Court dismissed an appeal from the judgment of Bignold J. Priestley JA observed that one reason for Bignold J's decision, in regard to both s111(1) of the EPA Act and the State Roads Act 1986, was that the RTA's decision affected the appellant simply as a member of the public or of a class of the public. Because of this Bignold J had held that there was no duty to accord procedural fairness. Priestley JA acknowledged that there was considerable force in this view. But he found it unnecessary to decide the case on that ground (see at 22). 97 Medway v Minister for Planning (1993) 30 NSWLR 646 was a decision of this Court relating to s101(1) of the EPA Act. That section confers a discretionary power on the Minister to direct a consent authority to refer a particular development application to the Minister for determination, that power being exercisable "having regard to matters which in the opinion of the Minister are of significance for State or regional environmental planning". Mahoney JA, who delivered the judgment of the Court, held that any obligation to provide an opportunity to make submissions before the giving of a direction was excluded having regard to the nature of the power and the manner in which it was expressed. He pointed out (at 652) that: The power is conditioned upon the giving of a direction being "expedient in the public interest". It looks essentially to a judgment of expediency made by the Minister and made by reference to the public interest. The emphasis is, I think, placed upon policy matters rather than upon the rights alone of individuals. It provides that the existence of the power to give a direction is to be dependent, not upon the fact of public interest expediency, but upon the opinion of the Minister in that regard. And the relevant expediency is to be judged, not by reference to factors identified as such in the section, but by reference to matters which, in the opinion of the Minister, are "of significance" for State and regional environmental planning. I think that, by matters such as these, the draftsman indicated the legislative intention that the giving of a direction was to be committed to the executive judgment of a Minister, to be made by reference to matters of such a generality as to be more appropriate for executive decision rather than proof in judicial proceedings. I do not mean by this that matters of, for example, expediency or public interest are not dealt with by courts: of course they are. But, in my opinion, legislative forms and expressions such as these assist in inferring the legislative intention as to the form of decision-making intended. 98 His Honour saw a further negative indication in the fact that the persons relevantly affected by the exercise of the power were numerous or difficult to identify, or identify in advance. See also Gardner at 519; Aronson and Dyer, Judicial Review of Administrative Action (1996) p431. 99 These principles are further illustrated and discussed in the context of planning law in Idonz Pty Ltd v National Capital Development Commission (1986) 67 ALR 46 (development approval); Rapid Transport Pty Ltd v Sutherland SC (1987) 62 LGRA 88; R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400 at 406; Colliers Properties (No 1) Pty Ltd v Adelaide CC (1988) 65 LGRA 397; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 90-92 (State Environmental Planning Policy No 45); Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 51; Botany Bay City Council v Minister for Transport and Regional Development (1996) 66 FCR 537 at 551-6. See generally Bradbury, "The Duty to Observe Procedural Fairness in the New South Wales Planning System" (1995) 12 EPLJ 440. 100 Except for Fay, none of these cases deals with Part 5 of the EPA Act. Nevertheless the principles which they expound are of general application and apply to the present situation. This is not a case where any duty of fairness is said to stem from the creation of a legitimate expectation in a particular group of people. The concept of an "activity" within Part 5 is protean. And it is capable of embracing projects (like the present one) which are vast in size, exposure and time-frame, and complex in their environmental and other impacts. Many of those impacts are indirect and general, and as such attract the description of acts which affect persons merely as members of the public or a class of the public. "Policy" and "political" decisions are involved. Competing interests have to be weighed (cf in the present cases the interests of air safety, pollution, species impact, noise, residential amenity, as well as the interests clamouring for the construction of the M5 East proposal in the first place). 101 Helman is distinguishable because what Handley JA described (at 359) as "something akin to a denial of natural justice" was breach of the mandatory terms of ss77 and 88 of the EPA Act, in relation to the exhibition of an EIS in relation to designated development. These remarks are apposite to s112(1)(a)-(c), but cast no light on the construction of s112(4). 102 For these reasons, the principles of procedural fairness were not attracted by the exercise of the power of modification of the original activity. The appellant's specific legal propositions 103 It is now possible to address the principal bases upon which the appellant challenges the decisions of the RTA and the Minister, and the reasoning of Bignold J who dismissed the proceedings at first instance. As refined in argument, the submission was that, in purporting (with the Minister's approval) to act under s112(4)(b)(i), the RTA misdirected itself in three respects: (i) It failed to consider whether the changes involved "radical transformation" having regard to the effect which they caused in creating significant adverse environmental impacts on previously unaffected land and groups of people. (ii) Conversely, it decided to reduce the detrimental effect of the proposed activity by introducing significant new adverse environmental impacts upon previously unaffected land and groups of people. (iii) The modifications were so lacking in specificity and finality that the proponent was incapable in law of determining whether they eliminated or reduced the detrimental effect of the proposed activity. Is resort to s112(4)(b)(i) precluded if the modification has a new adverse environmental effect? 104 It is convenient to address (i) and (ii) together, because the criticisms are two sides of the same coin. The nub of the submission is that a proponent cannot resort to s112(4)(b)(i) to modify a proposed activity if that modification, standing alone, involves (significant) detrimental effect upon the environment not previously addressed in the EIS. An alternative expression of the same submission was that a valid modification must eliminate or reduce the detrimental effect of the activity on the environment without generating new, significant, and different environmental impacts (Appellant's submissions par 21(c)). The clearest example of breach of this putative limitation on the power lies in the decision to erect the exhaust stack in Turrella. It is not enough, the appellant submits, that the entire detrimental impact of the motorway may be reduced by the modifications taken as a whole, or even if the impact of one component (eg exhaust evacuation from the tunnel) is reduced by comparing the impact of the original three stacks with the impact of the single substitute. 105 This submission gains no support from the text. The impact of the modification must be "so as to reduce or eliminate the detrimental effect of the activity", but the relevant power is to "modify the proposed activity". The provision does not speak of reducing the proposed activity, although that is obviously an option, along with refraining from undertaking it altogether (cf s112(4)(b)(ii)). In Qantas Airways Ltd v Aravco Ltd (1996) 185 CLR 43, Kirby J discussed the meaning of "modify" in a statutory context which spoke of "any term of a contract … that purports to exclude, restrict or modify" (Trade Practices Act 1974 (Cth), s68). He said (at 61, omitting footnotes): To "modify" connotes something softer [than exclude or restrict]. It involves the least affectation of the three forbidden effects. It means no more than to restrain, to make less rigorous or severe, to alter without radical transformation or simply to qualify something so affected. The essence of modification is that its subject remains in being but is altered in some way falling short of extinguishment. All that is needed is that there be partial changes in the thing modified. Such changes may enlarge or limit it. The word has a very large denotation. In my view these remarks have application and force in the present context. 106 With many activities, it is difficult to conceive of a modification that, standing alone, has a beneficial effect on the environment, a term defined in s4 as including all aspects of the surroundings of man, whether affecting him as an individual or in his social groupings. Most changes will have multiple impacts, some beneficial and some detrimental. The power to modify would be emasculated if, in response to public representations, a proponent lacked the capacity to choose the lesser of two evils, even if the lesser evil came to light in the representation phase. 107 The relevant limitation lies in the preclusion of the radical transformation of the proposed (ie exhibited) activity and in the requirement that the modification be so as to eliminate or reduce the detrimental effect of the activity on the environment, rather than in limiting the type of changes to those which have no negative impact of their own. 108 I have indicated above why the principles of procedural fairness cannot be called in aid of the appellant's narrow construction of the power. 109 To further restrict the power, so that it is not exercisable where the modification has an effect which, if the modification stood alone, would be detrimental is to add words into the provision that are not there. I am not satisfied that the Parliament's omission of such words was inadvertent. Accordingly, I do not have the liberty to add those words (see Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292). There are two reasons: • the provision is capable of sensible application, in compliance with the statutory objects, if the words are not added. • the addition of such words could lead to possibly unfortunate consequences, contrary to the approach urged by the appellant. Let me illustrate. Assume, as in the present case, that environmental assessment of a proposed activity revealed the existence of an affected colony of frogs. Assume that the colony could be saved by relocating a small part of the activity in a new area. The appellant's argument means that this could not occur without a fresh EIS and the other steps dictated by s112(1)(a)-(c) if the new area is affected to any degree. And this would be so, despite compliance with s111 and despite clear evidence that the environmental harm to the frog colony easily outweighed the environmental harm to the new area. Faced with such a limited choice, the proponent would be sorely pressed to leave its proposed activity unaltered, to the detriment of the frogs. It would be obliged to take account to the fullest extent possible of the impact of the proposed activity upon the recently discovered colony of frogs (see s111(1)). But, subject to that, it could elect to proceed with the original activity unaltered. I venture to suggest that this a reason for caution before adopting the appellant's approach to the power. It denies the authority the option of choosing the lesser of two evils if the authority is unwilling to contemplate the delay and expense inherent in going back into the loop of environmental assessment through exhibiting a fresh EIS. 110 The appellant invokes s8(b) of the Interpretation Act 1987, submitting that the modification or modifications must "eliminate or reduce the detrimental effect or effects of the activity on the environment". But s8(b) cannot be called in aid in the present context, because a contrary intention appears with sufficient clarity (cf Interpretation Act, s5(2)). The opening portion of s112(4) discloses the trigger for resort inter alia to the power to modify. That is the satisfaction by the determining authority that "the activity will detrimentally affect the environment" etc. This is a reference to the activity taken as a whole and it necessarily involves a judgment that pays regard to the combined operation of many different environmental impacts. The power to modify the proposed activity, conferred by s112(4)(b)(i), is available to be exercised "so as to eliminate or reduce the detrimental effect of the activity". This too treats the activity as a composite whole, while acknowledging that certain modifications may eliminate or reduce the overall detrimental effect. This is not to deny the continuing obligation (stemming from s111) to take into account to the fullest extent possible "all matters affecting or likely to affect the environment by reason of" the activity. But that obligation is independent of the obligation said to derive from s112. Did the modification lack necessary finality and specificity? 111 The appellant ultimately accepted that the power of modification conferred by s112(4)(b)(i) could be exercised either by redrawing the original proposal or by imposing conditions to which it is subject (cf North Sydney Council v Michael Standley & Associates Pty Ltd at 475-6). 112 However, it was submitted that a valid modification requires a particular degree of certainty and finality to qualify as a valid exercise of the relevant power. This submission is undoubtedly correct, for at least two reasons which can loosely be described as substantive and procedural. The substantive reason is that the word "modify" itself imports a level of identification and clarity of description. To announce "OK. We'll do something about the X problem" would contravene a requirement of precision implicit (to some degree at least) in the concept "modify", especially when that concept is applied to a proposed activity which was itself sufficiently formulated to call forth a duty to prepare an EIS in the first place. Whether or not uncertainty is an independent ground for striking down administrative acts (cf Aronson and Dyer, Judicial Review of Administrative Action pp358-61), the content and context of the relevant power imports a level of certainty that would be lacking in my hypothetical example. 113 The procedural reason lies in the nature of the power and the circumstances which call it forth and control its exercise. In particular, the obligations resting upon the proponent, to conclude that the modification was "so as to eliminate or reduce the detrimental effect of the proposed activity on the environment" (etc), dictate that the modification be identified at least to the degree that the proponent is armed with the capacity to make an informed judgment (cf Prasad v Minister for Immgration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). 114 But what level of precision or finality is required? The appellant contends that the relevant principles are stated in Mison v Randwick Municipal Council (1991) 23 NSWLR 734. That case involved the validity of a condition imposed upon a purported development consent which stipulated that the height of a dwelling house be "reduced to the satisfaction of the Council's Chief Town Planner". That condition was held to preclude the consent from complying with s91(1)(a) of the EPA Act which provides that: "A development shall be determined by the granting of consent to the application, either unconditionally or subject to conditions". 115 Priestley JA (with whom Meagher JA agreed) construed s91(1)(a) as precluding the imposition of a condition which had the effect of significantly altering the development in respect of which the application was made. Clarke JA (with whom Priestley and Meagher JJA also agreed) held that the act of granting consent imported a requirement of finality and certainty. The impugned condition fell foul of each such limitation because it left open the possibility that development carried out in accordance with the consent and the condition would be significantly different from the development for which the application was made or consented to. 116 These principles do not translate automatically to s112(4). In Mison, the requirement of finality and certainty derived from the stipulation in s91 that the granting of a consent was an act in law which represented the final disposition of the development application (see at 738 per Priestley JA, 739 per Clarke JA). By contrast, s112 relevantly directs a determining authority not to "carry out" the activity unless and until certain steps have occurred. 117 Even in its own area of application (ie Part 4), Mison does not invalidate every development consent containing conditions which leave matters open for later decision. The Court recognised that questions of degree are involved. Priestley JA pointed out (at 737-8) that the impugned condition in Mison necessarily involved a purported conferral of power to the Chief Town Planner to require even significant alterations to the room and floor layout of a single dwelling, being alterations departing from the plans approved by Council. Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of the development is prohibited. See also Malcolm v Newcastle CC (1991) 73 LGRA 356 at 364-5 (Stein J), Leichhardt MC v Minister (1992) 77 LGRA 64 at 75-6 (Talbot J). 118 In Scott v Wollongong CC (1992) 75 LGRA 112 it was pointed out that the principle deriving from Mison requires it to be shown that the impugned condition leaves open the possibility of a significantly different development. Samuels AP pointed out (at 118) that: …it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision. 119 The conditions challenged in Scott were held valid because the particular use of the land had been finally resolved by the development consent, notwithstanding that a number of matters ancillary to that use had been generally stipulated, with details left for later determination. 120 These principles were applied in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 94-6. Conditions of a development consent relating to a massive mining project provided for a landscape management plan, imposed a requirement to comply with Council requirements for visual amenity, and stipulated for an environmental plan proposed in consultation with the EPA and other statutory authorities, being a plan that included a comprehensive water management plan (see at 68-9, 94-5). 121 At first instance, Stein J held that, judged by Mison and Scott, none of the conditions were capable of resulting in any change to the core purpose of the development. They were ancillary to that purpose, albeit addressing important matters. Because they did not leave to the Council the power to determine matters which may effect a change in the nature, extent or characteristics of the development, they did not offend (see (1996) 90 LGERA 1 at 38). The Court of Appeal agreed. Although the judgments of Stein J and the Court of Appeal refer to s91(3A) which has no counterpart in Part 5, nothing suggests that this departed from the principles in Mison and Scott. 122 The Mison principle has been invoked to indicate the limits to use of management plans in the Part 4 context (see CSR Ltd v Wingecarribee SC, Land and Environment Court, unreported, Stein J, 17 December 1990). However, it has been recognised that the Mison principle is not contravened merely because a consent condition requires a management plan to address some issue (see eg Oshlack v Richmond River SC (1993) 82 LGERA 222 at 228-31; Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434 at 459-61, 464-6; Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 95 LGERA 229 at 264). The use of plans of management is recognised in the Local Government Act 1993, s36 and the National Parks and Wildlife Act, Part 5 and many other New South Wales statutes. But statutory authority is not essential before resort may be had to this well known concept in environmental law. The mere fact that a proposed activity in its original or modified form contemplates plans of management as integers of or means of carrying out an activity cannot be a ground of invalidity. (The 1996 EIS itself stipulated an activity that involved the preparation and carrying out of environmental plans of management of various sorts.) 123 The appellant submitted that there is a threatened breach of s112(1) that is not justified by s112(4)(b)(i) because the changes are not a formulated variation to the physical building or work, rather than a preparatory plan which might lead to such a variation. But this overlooks the fact that "activity" is defined to include the carrying out of work (s110(1)). There is a distinction of significance between Part 4 and Part 5. Unlike the conditional approval of a development application (ie a decision under Part 4), the decision to modify an original activity is not confined by reference to the scope of the application lodged with the consent authority. Under Part 5 one is dealing with an activity which the proponent is fully at liberty to modify (within the limits of its statutory powers) so long as it conforms to the dictates of Part 5 at the relevant time (in this case, the time of carrying out the (modified) activity). The relevant dictate is that found in the limits to s112(4)(b)(ii). So long as a change is not so radical as to bring about a new or different activity then it may be effected "so as to eliminate or reduce the detrimental effect of the activity on the environment" etc. A condition that authorises particular work if done to the satisfaction of the EPA or which calls for a fairly well defined plan of management addressing a specific matter is unlikely to authorise a radically different activity. Even though the location and extent of the compensatory wetlands is open-ended to a degree, as is the design and height of the Turrella exhaust stack and the methods that will be adopted for spoil disposal, none of these matters could conceivably amount to a radical change of the proposed activity which, from start to finish, remains that of constructing a motorway between fixed termini and very close to the route contemplated by the activity as exhibited in the 1996 EIS. 124 Part 5 of the EPA Act extends to projects of vast magnitude and complexity. It is not confined to a small building job in which a single professional (eg a builder) is constructing according to a simple plan and specifications. Many experts may be involved, with different areas of expertise that interact with each other. The political, economical, environmental and engineering aspects of an activity may all require attention over a lengthy time span during which the ground rules may change. Unforeseen problems may be encountered. The only certainty may be that there will be uncertainty. There is a public interest in efficiency and economy as well as a need for appropriate flexibility. 125 These factors mean that it is both impossible and impractical to define an original activity or modifications thereof with complete finality and specificity. Courts have been responsive to these needs. I cite three examples. First there is the body of case law (discussed above) in which the Mison principle itself has been interpreted flexibly. Secondly, the discussion in Guthega Development Pty Ltd of the requirements of s111 of the EPA Act specifically recognises the appropriateness of practical flexibility in the context of Part 5. Samuels JA said (at 367): It is true … that s111 does not require its provisions to be carried out before a final decision to undertake an activity is made or, indeed, at any other specific time. It is to be applied by a determining authority 'in its consideration of an activity'. It may therefore be designed …to entail a continuous monitoring of the development …. The decision-making sequence which s111 may be designed to implement is well described by the United States Court of Appeals for the Ninth Circuit in State of California v Block 690 F 2d 753 (1982), in particular at 761 where the Court observed: '…When a programmatic EIS has already been prepared, we have held that site-specific impacts need not be fully evaluated until a "critical decision" has been made to act on site development'. And a little earlier: '… The critical inquiry in considering the adequacy of an EIS prepared for a large scale, multi-step project, is not whether the project site-specific impact should be evaluated in detail, but when such detailed evaluation should occur.' (It is relevant to observe that s112(1) does not prohibit the making of a decision, but the carrying out of an activity unless and until the section is complied with.) 126 The third example may be found in the decision of the Court of Criminal Appeal in Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33. The Pollution Control Act 1970, s17D conferred the power to grant pollution control licences. The EPA was required to have regard to the pollution being or likely to be caused by the applicant and the impact of that pollution on the environment as well as the practical measures which may be taken to prevent, control, abate or mitigate that pollution (s17D(4)). One of the licence conditions stipulated: L6. Matter and substances on the premises shall be processed, handled, moved and stored in a proper and efficient manner. 127 Contravention of a condition of the licence was a criminal offence. It was argued that the condition was too general in its terms and that it failed to indicate with reasonable certainty or sufficient particularity what was required of the licensee. The Court held the condition to be valid. 128 Gleeson CJ pointed out that the problem relied upon by the appellant was not so much one of uncertainty, as of lack of specificity or particularity. He emphasised that courts did not exercise a general power to ensure fair behaviour. It was only where and to the extent that a requirement of certainty or particularity was inherent in the relevant statute that a provision would be struck down. His Honour emphasised (at 44) that it was not the function of a court of law to review the desirability of including in a licence a general condition such as condition L6. Of particular relevance to the present case are the remarks of the Chief Justice (at 41 and 44) where he pointed out that it was understandable that both the Authority and a holder of a licence might desire to avoid detailed description by the Authority in respect of matters which, subject to certain minimum standards, should be left to the commercial judgment of the licence holder. He said (at 44): I do not find it difficult to envisage circumstances in which both the Authority, and the holder of a licence, may regard it as positively preferable for a condition to be expressed in general, rather than specific, terms. One advantage of a condition of that kind may be that it would set the outer limit applicable to a licensee's conduct in relation to a certain matter but, within those limits, leave it to the holder of the licence to make its own decisions as to how to conduct its business. 129 It was submitted that it is incumbent upon a proponent to formulate the "activity" it wishes to carry out with sufficient precision to identify the lands and groups of people affected by the activity (Appellant's submissions par 61). No authority was cited for this proposition. It appears to me to add requirements to ss111-112 that are not to be found in the legislation. I am not denying that there is a minimum level of specificity required before a vague conception becomes a proposed activity. After all, the proponent must clarify its intentions sufficiently to be able to consider the environmental impact (cf s111) and to prepare an EIS "in respect of the activity" (cf s112). But nothing in those sections requires the precise identification of the lands and groups of people affected by the activity. Nor do the relevant requirements of the Environmental Planning and Assessment Regulation 1994 dealing with environmental assessment under Part 5 (see Part 8 and Schedule 2 of the Regulation). 130 Before Bignold J, conditions 10, 92 and 93 of the Minister's Approval were said to illustrate the vice of a modification that did not contain a formulated and final proposal. At par 91 of his judgment his Honour rejected this argument, principally because it conceptually confused "conditions" of the Minister's Approval with "modifications" to the exhibited proposal. He held that the conditions referred to were not modifications to the exhibited proposal, but rather were conditions imposed in consequence of the adoption of the modifications. 131 This reasoning was challenged in the appellant's written submissions, but this challenge (which was based on the submission that the RTA had no power to impose conditions) was not pressed. This said, the distinction between modifications and conditions does not in itself provide an answer to a challenge based on lack of specificity and particularity. 132 However Bignold J expressed the view (in par 92 of his judgment) that his earlier findings on the nature of the changes to the exhibited proposal satisfied him that they were sufficiently definite to constitute "modifications" within the meaning of s112(4). With some justification, the appellant submits that none of the earlier findings in his Honour's judgment appear to address the issue of specificity. Nevertheless, I agree with this conclusion. 133 I explain below why I see little point in examining the conditions to which the RTA's decision of 14 July 1997 was subject. That decision does not represent the present resolve of the RTA. Rather it is the decision of 12 December 1997 that defines the conduct which the RTA has embarked upon. If there is a threatened breach of s112 it relates to the conduct proposed in the December decision of the RTA. 134 The following can be said about the challenged conditions (found in the Schedule to this judgment): • Condition 10 prescribes environmental management plans which must be "progressively prepared for various sites and locations" prior to commencement of construction. They must be prepared to the satisfaction of the Director-General, after consultation with various government organisations and prepared in accordance with the conditions of the approval (contrast Mison) and "accepted best practice management procedures". The matters which they must address and cover are spelt out with great specificity in pars (a), (b) and (c). The character and detail of the Stormwater Management Procedure are defined in detail in conditions 106-108. Likewise with the Soil and Water Management Procedure and related construction stage water pollution control measures (see conditions 115-121). • Contaminated spoil disposal is addressed in conditions 98-102. There must be site investigation to determine the nature, extent and degree of contamination. The environmental management plan required by condition 10 and any remediation (conditions 98-100) must be done to the satisfaction of the EPA (which is the amply-armed statutory body with responsibility for protection of the environment: see Protection of the Environment Administration Act 1991). Only EPA-approved landfills may be used for off-site disposal (condition 100). Conditions 101-102 also prescribe remediation requirements with a level of specificity appropriate to the necessarily open-ended nature of the problem. And they prescribe objective points of reference. • Conditions 70-81 deal with the exhaust tunnel and the Turrella stack. There are design parameters of considerable specificity coupled with a requirement that the design must be independently verified to the satisfaction of the Director-General by an independent person or organisation (condition 70). Design must take place in consultation with relevant councils and must be "architecturally sympathetic with other development in the vicinity" and satisfy other design principles (condition 76). As to the height of the stack, it must be higher than 25 metres unless otherwise approved by the Director-General, upon advice from the EPA (condition 73), while at the same time complying with the reasonable requirements of the Federal Airports Corporation (condition 77). The circumstances in which the RTA may be required to raise the stack higher involve consultation with the EPA "as deemed necessary to improve dispersion of emissions and/or to reduce the potential impact of emissions on the local population, after considering the results of the wind tunnel testing and any advice from the EPA". Before commencement of construction a Community Consultative Committee must be established (condition 78), but monitoring is also addressed with considerable specificity in condition 75, which is to be read with the design specifications in conditions 70-72. Provision is also made for ongoing strategies for improving air quality; and the RTA is required to set aside money for this purpose (conditions 80-81). • Conditions 87-91 specify the design parameters of the motorway in its impact with the Eve Street Wetlands. The mere fact that this work is to be done to the satisfaction of the Director-General, in consultation with Sydney Water Corporation (SWC) and National Parks and Wildlife Service (NPWS), does not render the conditions unduly imprecise, considering the various matters addressed in them. • Condition 92 requires the preparation of a compensatory wetland Plan of Management. This is to be prepared within six months from the date of approval, to the satisfaction of the Director-General. The appellant particularly attacks this condition (and its predecessor in the July decision) on the basis that the precise location, size and cost of the compensatory wetlands to be ultimately chosen are presently unknown (cf Parramatta City Council v Hale (1982) 47 LGRA 319 at 334). However, this challenge is misconceived, because the evidence shows detailed assessment of a finite number of relatively contiguous sites, with the conclusion that many of them would satisfy the requirement of addressing the particular need in a satisfactory manner. It is irrelevant that ultimate choice is deferred or that some of the sites are not on land that the RTA owns, because condition 92 requires the compensatory wetlands to be "established and operational prior to the commencement of the Motorway". The feasibility of the compensatory methods proposal was attested to by Mr Forward (AB 1499-1500). • Spoil disposal is addressed in conditions 83 and 93-97. Spoil is not to be dumped in environmentally sensitive places specified in conditions 83 and 96. Priority must be given to the recycling of clean and/or treated spoil (condition 95). There is to be a Spoil Management Plan which addresses the matters specified in condition 93 and is to be prepared in consultation with the EPA and relevant councils before commencement of construction at relevant sites. The EPA and other relevant authorities are to be armed with information (condition 94) that would enable them to take appropriate action under whatever powers they have. Condition 97 requires the RTA to provide the relevant councils with detailed plans for the routes and access points to be used by construction traffic. Mr Forward had previously explained why greater detail as to routes and access points could not be given at this stage (see pars 63-64 above). 135 This analysis shows that all of the conditions may properly be described as ancillary to the core purpose of the activity and consistent with the proper exercise of the RTA's power to modify. 136 There is nothing objectionable in deferring to the greater expertise of appropriate authorities such as the EPA, DLWC, NPWS or SWC, or contemplating that such bodies will exercise their statutory powers in the future as particular issues referable to their several expertises arise. Mison or any variant of it does not preclude such a sensible way of carrying out an aspect of the activity in the future. The impact of Division 4 137 Division 4 of Part 5 was added in 1993. 138 For activities to which the Division applies, a determining authority that is the proponent of the activity must seek and obtain the approval of the Minister, and comply with any conditions to which such approval is subject (s115A(1)). (This is subject to s115B(9), which contemplates dispensation from this obligation if the Minister does not make a decision within a defined period.) When considering whether to approve of an activity, the Minister is to review the decision of the proponent to carry out the activity having regard to the assessment of the activity under Part 5 and the rights and obligations of the proponent (s115A(3)). The Minister's power to grant approval is circumscribed in various ways and made subject to various procedures (see esp ss115A(3),(4), 115B(3), 115BB, 115C). 139 The Minister's power is less confined than that of the determining authority. In particular, the Minister is not constrained to approve of conditions or modifications eliminating or reducing the detrimental effect of the activity. The respondents rely upon this as an alternative way of meeting the appellant's case based upon the strictures of s112(4). 140 The real issue for the respondents is demonstrating that the door to the Minister's broader approving power was duly unlocked. I consider that it was, and that conclusion removes the necessity for resorting to the wider ministerial powers on the facts of the present case. 141 Section 115F expresses the transitional arrangements referable to Division 4. The Division does not generally apply to an activity if, inter alia, the proponent "obtained the environmental impact statement" before the commencement of the Division (ie 22 April 1994): see s115F(1). But s115F(2) qualifies this exception by stating that, if the activity to which an EIS relates has not been carried out, Division 4 applies to the activity if the Minister (by notice in writing to the proponent) so directs. 142 As indicated above (par 14), such a directive was given on 31 July 1997, referable to "the proposed activity referred to as the M5 East Motorway project". This should be construed as a reference to the proposal as it then stood, ie as reformulated in the RTA Decision of 14 July 1997. 143 Section 115A(2) relevantly states that Division 4 only applies to an activity if: (a) the proponent has obtained an environmental impact statement in respect of the activity …. 144 The appellant's primary submission concerning Division 4 was that the Division was applicable to the subject activity, but that the Minister's purported approval given on 9 December 1997 was invalid because of s115B(1) which relevantly stated: A proponent may seek the Minister's approval under this division after it has complied with section 112(1)(a)-(c). The appellant initially accepted that any prohibition upon a proponent seeking the Minister's approval under Division 4 was lifted with respect to an activity in the event either of compliance with s112(1)(a)-(c) or the due modification of the proposed activity in accordance with s112(4). 145 On this approach, the validity of the Minister's approval on 9 December 1997 was dependent upon the RTA's prior compliance with s112. The appellant submitted that the legal deficiencies of the July decision as a due modification of the original proposal addressed in the December EIS precluded resort to the Minister for approval under Division 4, with the result that that approval and the ensuing RTA decision of 12 December 1997 were invalid. 146 Alternatively, the appellant challenged the Minister's approval (and the ensuing RTA decision) because the conditions imposed by the Minister were in a number of respects lacking in requisite finality or certainty. Reliance was placed on Mison. In the court below Bignold J accepted the submissions of the respondents that the principles in Mison do not apply to Division 4, as distinct from Part 5 generally. Because I consider that Mison does not apply directly to Part 5 activities at all, and because I have held that the conditions imposed by the Minister and adopted by the RTA in December are valid, there is no point in prolonging the judgment by considering the correctness of Bignold J's more limited proposition about Division 4. 147 I therefore return to the challenge based upon non-compliance with s112(4) with respect to the RTA Decision of 14 July 1997, being the activity for which Ministerial approval was directed to be obtained. I would reject that challenge, for the same reasons as I have indicated that the ultimate RTA decision of 12 December 1997 is valid. That decision involved the due modification of the proposal activity notwithstanding its fresh environmental effects, because the proposal as modified reduced the detrimental effect of the activity as a whole. It is true that the conditions attached to the July decision were less stringent than those ultimately approved by the Minister and adopted by the RTA. But they were not on that account invalid, or sufficient to prevent the carrying out of the activity as proposed in July. Bignold J correctly accepted Mr Forward's evidence about his decision-making processes in July. And my conclusions as to the principles of finality and specificity required for Part 5 apply equally to the relevant conditions of the July decision. 148 It may be that the appellant's arguments are self-defeating in this area. That is because, if the July 1997 decision is invalid as a trigger for invoking Division 4, the consequence may be that one is unconcerned about the validity of both the July decision and the Minister's approval. This would leave the RTA Decision of 12 December 1997 standing on its own feet as a modification of the 1996 EIS proposal. Viewed this way, it is valid without the need to resort to Division 4. The Ministerial directive for approval is confined to the July Decision. 149 I mentioned (par 145) that the appellant initially accepted that a duly modified proposed activity could trigger the application of Division 4. During argument, the appellant submitted that ss115A(2)(a) and 115B(1) should be read literally, and construed as requiring compliance with s112(1)(a)-(c) (ie exhibition of an EIS) in relation to the activity referred to the Minister for approval, without the capacity to resort to s112(4) to change the proposed activity in a way not involving a fresh EIS. (This submission was embraced as a means of defeating the respondents' reliance upon Division 4 as a means of overcoming any deficiencies stemming from Division 3.) 150 In my view, this stance of the appellant was both self-defeating and wrong. It was self-defeating, because it would mean that Division 4 had no application to the activity in view of the terms of s115A(2)(a), with the consequence identical to that contemplated in par 149 above. But the submission was also wrong, because I cannot read the literal terms of ss115A(2)(a) or 115B(1) as precluding reliance upon s112(4). Just as s112 itself deems subs (1) thereof to have been complied with if the exceptional terms of subsection (4) are complied with, s115B(1) be read in the same way. Section 115A(2) is also satisfied in that situation, because s112's requirement that the proponent obtain an EIS has been satisfied in respect of the activity, notwithstanding that the modification of the proposed activity did not itself require a fresh EIS. 151 Accordingly, the door to Division 4 was duly opened and the requirements of that Division were met. The RTA was entitled and bound to make the Decision of 12 December 1997. It becomes unnecessary for the respondents to rely upon Division 4 to overcome any problems affecting the Decision of 14 July 1997. 152 The appeal should be dismissed with costs. 153 SHELLER JA: I have had the privilege of reading the judgment prepared by the President. His Honour has fully set out the facts and the main legislative provisions relevant to this appeal. It is unnecessary for me to repeat them in detail. ACTIVITY 154 The meaning of "activity" was defined in Part 5 of the Environmental Planning and Assessment Act 1979 (EPA Act), as in force in 1997. Before Bignold J it was common ground that the proposed M5 East Motorway was an activity being either the erection of a building or "the carrying out of a work in, on, over or under land". The nature and scope of a particular activity was necessarily delimited by the way in which the body proposing to carry out the activity (the proponent) described it and stated its objects and the manner of achieving those objects. The starting point was a proposed activity to be considered by a determining authority (s111 of the EPA Act). If the activity was likely to significantly affect the environment, before work could begin to carry it out an environmental impact statement had to be obtained and considered (s112 (1) of the EPA Act) and made available for public inspection (s113 of the EPA Act) and various approvals and consents obtained (see, for example, s112 (1) (c1) and (1A) of the EPA Act). Public inspection of the EIS might lead to representations by members of the public which the determining authority was bound to examine and consider (s112 (1) (b) of the EPA Act). Before beginning to carry out an activity the determining authority, if satisfied that the activity would detrimentally affect the environment, might modify the proposed activity so as to eliminate or reduce the detrimental effect of the activity on the environment (s112 (4) (b) (i) of the EPA Act). DUTY OF THE DETERMINING AUTHORITY 155 The EPA Act contemplated a progression of consideration and examination, of consents and approvals and the possibility of change to the proposed activity before work began. But at each stage, the determining authority made the determination or decision. "Determining Authority" was defined in s110 to mean a Minister or public authority and, in relation to any activity, the Minister or public authority by or on whose behalf the activity was or was to be carried out or any Minister or public authority whose approval was required in order to enable the activity to be carried out. 156 In general terms, Part 5, Division 2 of the EPA Act, headed "Duty of determining authorities to consider environmental impact of activities", and in particular, s111, headed "Duty to consider environmental impact", described the duty of the determining authority in considering the environmental impact of an activity. Section 111 (1) of the EPA Act provided that for the purpose of attaining the objects of the Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity should examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. Section 111 (2) provided that a determining authority should consider the effect of an activity on any applicable conservation agreement entered into or under the National Parks and Wildlife Act 1974, any relevant plan of management adopted under that Act and any joint management agreement entered into under the Threatened Species Conservation Act 1995. Section 111 (3) provided that a determining authority should consider the effect of an activity on any local wilderness area. Section 111 (4) provided that a determining authority had to consider the effect of an activity on critical habitat, populations and ecological communities of threatened species and their habitats and any protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974. THE EXTENT OF THE DUTY 157 The reach of s111 extended beyond the time that work on the activity commenced to the time during which it was being carried out. "Activity" meant "the carrying out of a work". In Guthega Developments Pty Limited v Minister Administering the National Parks and Wildlife Act (1986) 7 NSWLR 353 at 367 Samuels JA said that s111 did not require its provisions to be carried out before a final decision to undertake an activity was made or, indeed at any other specific time. "It is to be applied by a determining authority 'in its consideration of an activity'. It may therefore be designed, in a case such as the present, to entail a continuous monitoring of the development ……. The decision making sequence which s111 may be designed to implement is well described by the United States Court of Appeals for the 9th Circuit in the State of California v Block 690F 2d 753 (1982) in particular at 761 where the court observed: '……when a programmatic EIS has already been prepared, we have held that site-specific impacts need not be fully evaluated until a 'critical decision' has been made to act on site development'." 158 In the present case, the first respondent, the Roads and Traffic Authority (RTA), was the proponent of the activity and the determining authority. Until 31 July 1997, when the second respondent, the Minister responsible for the EPA Act (the Minister), gave a direction under s115F (2) of the EPA Act, the RTA alone bore the duty imposed by s111 and s112, to consider the environmental impact of the activity and to decide whether the activity should be undertaken. As a result of the Minister's direction, s112 (1) (c1) interposed the need to obtain the Minister's approval in order to enable the activity to be carried out. At that point the Minister became the determining authority. The duty under s111 of the EPA Act was imposed upon the Minister; s115B (3) of the EPA Act. 159 The Minister could approve an activity with or without conditions or modifications, whether or not those conditions or modifications eliminated or reduced the detrimental effect of the activity; s115B (2) of the EPA Act. This was significant in the present case in at least one respect. The Minister as determining authority approved the activity subject to the modification of the RTA's requirement that the height of the exhaust stack at Turella be 20 to 25 metres. The Minister required that the exhaust stack be higher than 25 metres unless otherwise approved by the Director General upon advice from the New South Wales Environment Protection Authority. The power of the Minister to require this modification or impose such a condition was not affected by s112 (4) (b) (i) of the EPA Act. 160 However, the RTA could not seek the Minister's approval under Div 4 of Pt 5 of the EPA Act until it had complied with the requirements of s112 (1) (a) - (c) and s115B (1) of the EPA Act. Once the Minister's approval of the activity (with or without conditions or modifications) was obtained, the requirement of s112 (1) (c1) was satisfied and it was for the RTA as the determining authority to decide whether to undertake the activity. This it did on 12 December 1997. MODIFICATION 161 In December 1996 the RTA had obtained, examined and considered the 1996 EIS which was publicly notified and exhibited between December 1996 and March 1997. Representations were received and considered and on 30 June 1997 a representations report was published. On 14 July 1997 the RTA decided to proceed with the activity but with amendments described in the representations report and on conditions contained in an exhibit to it. On its face, when the RTA sought the Minister's approval under Div 4, it had complied with s112 (1) (a) - (c). 162 The appellant claimed, however, that s112 (1) (a) - (c) of the EPA Act had not been complied with because the changes to the original proposal were not modifications of the "proposed activity" and if they were, they were not such as to eliminate or reduce the detrimental effect of the activity on the environment. It followed that the determining authority was required by s112 (1) again to obtain, examine and consider an environmental impact statement in respect of the activity and make it available for public examination and comment. 163 For the reasons the President has given, I agree that the changes to the original proposed activity were, within the meaning of s112 (4) (b) (i) of the EPA Act, modifications. I think it is correct to say that what there was meant by "modify" was a change which might add to or subtract from the proposed activity, the substance of which continued, and which was less than its wholesale rejection and replacement; see generally Legg v Inter London Education Authority [1972] 1 WLR 1245 at 1256, Qantas Airways v Aravco Limited (1995) 185 CLR 43 at 61 and North Sydney Council v Michael Standley & Associates Pty Limited (1998) 43 NSWLR 468 at 474. 164 It would be wrong, in my opinion, to separate the proposed change to the activity and treat that as an activity standing alone. Separate from the whole, there was no proposed activity. To consider the change alone would be to distort what s112 (4) (b) (i) intended, namely, a modification of the proposed activity "so as to eliminate or reduce [its] detrimental effect…… on the environment." Commonly, a determining authority would have been required to choose between a feature of a proposed activity and a proposed change to that feature which would have a detrimental effect on the environment. But if the activity as a whole was changed in a way which eliminated or reduced its detrimental effect on the environment, the determining authority was permitted to make the change. 165 Moreover, in my opinion, the duty to determine whether in this sense the modification would eliminate or reduce the detrimental effect of the activity on the environment was the duty of the determining authority. In the course of argument it was pointed out that in s112 (4) (a) (i) of the EPA Act a determining authority, except where it was the proponent of the activity, might impose such conditions or require such modifications as would "in its opinion" eliminate or reduce the detrimental effect of the activity on the environment. In s112 (4) (b) (i), which was here applicable, because the determining authority was the proponent of the activity the imposition of conditions and the opinion of the determining authority were not mentioned. Accordingly the appellant submitted that the power to modify depended upon its being objectively demonstrated that the modification would eliminate or reduce the detrimental effect of the activity on the environment. 166 But in the context of s112 I do not think that that follows from the inclusion in s112 (4) (a) (i) of the words "in its opinion" and their absence from s112 (4) (b) (i). Section 112 (4) (a) (i) applied only to the situation where the determining authority was not the proponent of the activity. Accordingly, questions might arise about whether the determining authority's opinion was decisive if in conflict with the proponent's about whether the conditions or modifications would eliminate or reduce the detrimental effect of the activity on the environment and whether the proponent could challenge the determining authority's decision. Where the determining authority was the proponent of the activity these questions did not arise. 167 Section 112 of the EPA Act provided for the determining authority to: · form an (initial) opinion as to the impact of the proposal; · prepare or cause to be prepared an EIS, as necessary, depending upon opinion formed; · invite submissions on the EIS; · consider those submissions; and · (if appropriate) modify the proposed activity. 168 As its name suggested, the determining authority was the body entrusted with the task of deciding these matters. If it acted bona fide and reasonably its decisions could not be challenged, even if some other body on the same material might legitimately have reached a different view. However, I agree that on the evidence Bignold J was right to conclude that objectively the modifications of the proposed activity were such as to eliminate or reduce its detrimental effect on the environment. CONCLUSION 169 For the reasons the President has given, I do not think the exercise of the power of modification of the original activity pursuant to s112 (4) (b) (i) attracted the principles of procedural fairness in the sense of requiring the determining authority to obtain and examine a further environmental impact statement and allow and consider representations about it. I agree also, for the reasons the President has given, that neither the modifications nor the conditions made or imposed by the RTA or the Minister were so lacking in finality or specificity as to make invalid the decisions of the RTA of 14 July and 12 December 1997 or the approval of the Minister of 9 December 1997. In particular, I agree with his Honour's reasons for distinguishing the principles for which Mison v Randwick Municipal Council (1991) 23 NSWLR 734 stands. 170 Otherwise for the reasons the President has given, I agree that the appeal should be dismissed with costs. FITZGERALD JA: The Dispute 171 The respondent Roads and Traffic Authority ("RTA") proposes to construct a four-lane road, the M5 East Motorway, between Fairford Road, Padstow and General Holmes Drive, Kyeemagh. Construction of the motorway " … is likely to significantly affect the environment …" EPA Act, subs 112(1). and "… will detrimentally affect the environment…". EPA Act, subs 112(4). By virtue of Part 5 of the Environmental Planning and Assessment Act 1979 (the "EPA Act"), RTA's power to construct the motorway is conditional upon compliance with the prescribed environmental assessment process. It was not in dispute that compliance with Part 5 is an "essential preliminary" (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490, 515) to RTA's power to construct the motorway, although there was extensive debate concerning whether more was required than RTA's opinion (which is shared by the Minister) that the requirements of Part 5 have been satisfied. The appellant Transport Action Group Against Motorways Inc (the "Group") has argued that RTA presently lacks power to construct the motorway which it proposes because of non-compliance with Part 5. 172 The proposed motorway has undergone a number of changes. It is appropriate to start with the proposal for the motorway which was the subject of a supplementary environmental impact statement which RTA obtained in December 1996 The 1996 environmental impact statement was supplementary to an environmental impact statement which had been publicly notified and exhibited in 1994. (the "December 1996 proposal"). That environmental impact statement was publicly notified and exhibited in accordance with Part 5 of the EPA Act, and public representations were examined and made the subject of a report under subs113(5) of the EPA Act on 30 June 1997. The Group did not dispute in this Court that RTA has power to construct the motorway in accordance with the December 1996 proposal. 173 An altered proposal (the "July 1997 proposal") was adopted by RTA by a decision made on 14 July 1997. At RTA's request, the other respondent, the Minister for Urban Affairs and Planning, gave a direction under subs115F(2) of the EPA Act on 31 July 1997 that the July 1997 proposal "be assessed and determined" under Division 4 of Part 5 of that Act. On 9 December 1997, the Minister conditionally approved the July 1997 proposal under subs115B(2) of the EPA Act. On 12 December 1997, RTA decided to construct the motorway in accordance with the Minister's conditional approval of the July 1997 proposal. Although it will later be necessary to refer to the July 1997 proposal in connection with a discussion of Division 4 of Part 5 of the EPA Act, RTA proposes to construct the motorway in accordance with its decision of 12 December 1997 (the "December 1997 proposal"), which must therefore be the primary subject of consideration. 174 It is not in dispute that the construction of the motorway in accordance with any of the three proposals, the December 1996 proposal, the July 1997 proposal and the December 1997 proposal, would have significant detrimental effects on the environment, as would the carrying out of the work involved in each of the alterations to the December 1996 proposal which are contained in the July and December 1997 proposals. 175 The Group has appealed to this Court against a decision of the Land and Environment Court which dismissed its proceeding in that Court. The appellant seeks declarations that the Minister's conditional approval of the July 1997 proposal on 9 December 1997 and RTA's decision to construct the motorway in accordance with the December 1997 proposal are "null and void and of no effect", an injunction restraining RTA "from carrying out any clearing of vegetation, earthworks, the demolition of any structure, or any engineering or constructing work, associated with the M5 East motorway", and orders for the costs of this appeal and the proceeding in the Land and Environment Court. 176 The declarations sought by the Group appear to tacitly assume that the Group's claim for injunctive relief is dependent upon a successful challenge to the validity of the Minister's conditional approval of the July 1997 proposal on 9 December 1997 and RTA's decision of 12 December 1997. The significance, if any, of either or both of those decisions to RTA's power to construct the motorway in accordance with the December 1997 proposal is at the heart of the matters which this Court must consider. RTA is referred to in Part 5 as a "determining authority", and the Minister is referred to in Division 4 of Part 5 as an "approving authority". 177 Alterations to the December 1996 proposal which are contained in the December 1997 proposal which will have "significant" EPA Act, subs 112(1). "detrimental" EPA Act, subs 112(4). environmental effects have not been the subject of an environmental impact statement or public representations. It was not in dispute that, subject to the possible operation of Division 4 of Part 5 of the Act, RTA cannot construct the motorway in accordance with the December 1997 proposal without notifying and exhibiting a further environmental impact statement and considering public representations EPA Act, subs 112(1). See, for example, Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (1986) 7 NSWLR 353, Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186; Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265. unless the alterations to the December 1996 proposal contained in the December 1997 proposal are a modification of the December 1996 proposal which, despite the detrimental environmental effects of the alterations, will reduce the detrimental effect of the construction of the motorway on the environment. EPA Act, subs 112(4)(b)(i). RTA and the Minister are of opinion that the alterations to the December 1996 proposal which are contained in the December 1997 proposal are a modification of the December 1996 proposal which will reduce the detrimental effect of the construction of the motorway on the environment. One of the Group's principal arguments was that that opinion is incorrect. Part of the dispute on this issue concerned whether the condition to which RTA's power to construct the motorway is subject is dependent on the opinion of either RTA or the Minister or an objective factual state; namely, whether the alterations to the December 1996 proposal which are contained in the December 1997 proposal are in fact a modification of the December 1996 proposal which will reduce the detrimental effect of the construction of the motorway on the environment. 178 The Group's other argument was that the December 1997 proposal does not comply with Part 5 of the EPA Act because, by virtue of attached conditions, it lacks specificity, certainty and finality. This argument seemed to have two partially overlapping aspects. One was that Part 5 of the EPA Act requires an "activity" to be specific, certain and final. The other was that a modification under subs 112(4)(b)(i) of the EPA Act must be specific, certain and final. 179 In addition to joining issue on the matters raised by the Group, the Minister and RTA argued that the December 1997 proposal is immune from challenge because it accords with the Minister's conditional approval of the July 1997 approval under Division 4 of Part 5 of the EPA Act. As will be seen in due course, this argument is circuitous. 180 The Land and Environment Court's jurisdiction to hear and determine the Group's proceeding arose under s16 and 20(1)(c) See also Land and Environment Court Act 1979, subs20(2) and (3). of the Land and Environment Court Act 1979 and s123 of the EPA Act. This Court's material jurisdiction and powers arise under s58 of the Land and Environment Court Act and s75A of the Supreme Court Act 1970. The proceeding in Land and Environment Court was a hearing in its original jurisdiction. Land and Environment Court Act, subs 20(1); ss22 and 23. The appeal to this Court is a rehearing. Supreme Court Act, subs 75A(5). The significant environmental effects of the alterations to the December 1996 proposal contained in the December 1997 proposal, and the applicable conditions 181 Cooks River Tunnel A bridge over the Cooks River in the December 1996 proposal was replaced in the December 1997 proposal by a 775m tunnel on a different alignment under the Cooks River. Environmental Benefits The amenity and visual appearance of the river will be better preserved by a tunnel than a bridge. The use of a tunnel will remove a conflict between the bridge and Sydney Airport's east-west runway, reduce the impact of lights from traffic on aircraft movement and improve air navigation safety. Environmental Detriments a. Exposure of soils with acid sulphate potential The riverbed where the tunnel is to be constructed has high acid sulphate potential. When this soil is exposed to oxygen, either by removal from below the water table, or lowering the water table during construction, sulphuric acid will be produced. Environmental problems associated with sulphuric acid include the corrosion of steel and concrete structures; the clogging of aquifers Layers of rock or soil able to hold or transmit much water. due to iron hydroxide precipitation; disease or death of aquatic life; leeching of heavy metals from the soil (especially aluminium); and health risks for humans due to increased aluminium concentrations in water and fish. Conditions Condition 114 requires the preparation of a detailed "Soil and Water Quality Management Procedure", which is to provide details of pollution control measures to be undertaken during construction and operation. Condition 120 requires RTA to carry out tests for acid sulphate soils. RTA must prepare an "Acid Sulphate Management Plan" in accordance with NSW Environment Protection Authority ("EPA") guidelines, and a contingency plan to deal with unexpected finds of actual or potential acid sulphate soils. b. Disturbance of contaminated sediment The sediment of the Cooks River is heavily impregnated with tar-like organic contaminants and high concentration levels of zinc, copper and lead. The release of these contaminants by dredging and handling will result in reduced water quality and contamination of fish, is likely to produce an offensive odour, and may represent a health risk for humans. The removal of the sediment is also likely to involve contaminated spoil stockpiles, drying beds and slurry ponds. The location and size of these facilities and the method of disposal of contaminated soil are undetermined. Conditions Condition 68 requires that equipment and facilities for the control of potential odour problems must be approved by the EPA and ready on site before activities are carried out. Conditions 115 to 121 outline "Construction Stage Water Pollution Control Measures" which include: the preparation by RTA of an "Erosion Sedimentation Control Plan" and "Site Rehabilitation Plan"; the provision and implementation of river bed sediment control measures; the construction of flood free storage ponds and drying beds for the treatment of slurry and river sediment; the treatment and testing of water prior to disposal; and the monitoring of the impact of the project on erosion of embankments with identified impacts to be remediated as soon as identified. Many of these measures must be implemented in ways approved by the EPA or the Department of Land and Water Conservation ("DLWC"). Additionally, Condition 125 requires that water in the tunnel which is likely to contain increased pollution be directed into separate pumps, not discharged into storm water. c. Flooding The construction and presence of the tunnel is likely to cause increased flooding in the locality, and the maximum potential flood impact is undetermined. The significant risk of flooding in the construction phase, which will involve obstruction of the available waterway area, will be increased if construction of the tunnel coincides with construction of the final stages of the New Southern Railway. In a 1% run off event with a normal high tide, construction of the tunnel will provide a potential increased flood impact of 0.29 metres at Holbeach Ave, and it is likely that residential areas downstream of the point at which the railway will cross the river will also be affected. If construction of the tunnel and the final stages of the New Southern Railway take place contemporaneously, the potential increased flood impact at Holbeach Ave will be 0.38 metres. The viaduct piers and portal entrance transition within the Cooks River flood plain also have the potential to increase future flood levels. Conditions Conditions 106 to 113, which deal with "Flooding and Stormwater Management", require the preparation of a "detailed Stormwater Management Plan" which must deal with flooding issues in Wolli Creek Valley and in the Cooks River area and appropriate mitigation measures. A "Flooding Contingency Plan" must be prepared, and insurance details supplied. Stormwater flows from the motorway are to be managed to avoid exacerbation of existing flooding, drainage from the tunnel is to take into account other relevant flooding factors, and the tunnel portals are to be designed so that the tunnel remains flood free in a "Probable Maximum Flood" event. d. Subsidence The construction of the tunnel is likely to cause subsidence which may affect the stability of existing structures in the locality. The excavation of the tunnel portals may require temporary lowering of the ground water table during the construction phase. The compressibility of the organic sediments at these sites is likely to lead to subsidence of the soils. As the sites are adjacent to the South Western and Southern Ocean Outfall Sewer ("SWSOOS") lines, the subsidence may impact upon SWSOOS foundations. Conditions Conditions 49 to 52 deal with settlement and require: detailed settlement analysis to ensure that it does not exceed certain criteria; settlement criteria be determined for "individual sensitive utility structures"; settlement be monitored, and, if settlement during construction exceeds criteria, all work must cease and rectification take place. RTA is responsible for protection of existing structures and for rectifying any damage. e. The excavation of the tunnel under the Cooks River will produce a significant quantity of extra spoil. Environmental issues associated with spoil are discussed below. 182 Realignment of the motorway from north to south of the South Western and Southern Ocean Outfall Sewer The December 1996 proposal located the motorway to the north of the SWSOOS, bypassing the Eve Street wetland and passing through a corner of the Marsh Street wetland. In the December 1997 proposal, the motorway will be located on the southern side of the SWSOOS, and will pass through the Eve Street Wetland and the entire length of the Marsh Street wetland. Environmental Benefits The realignment will avoid structural impact on the SWSOOS and the associated risk of very severe environmental problems. It will significantly reduce the impact on the Kogarah Golf Course and allow the preservation and enhancement of the existing foraging areas used by the Green and Golden Bell Frog on the golf course. Environmental Detriments a. The destruction of the Eve Street Wetland The Eve Street wetland, which is ecologically significant and listed in "A Directory of Important Wetlands in Australia", will be destroyed. The destruction of this wetland will mean the destruction of the habitat of frogs and birds, including nine species of migratory waders listed in the Japan/Australia Migratory Birds Agreement and 11 species of migratory waders listed in the China/Australia Migratory Birds Agreement. Conditions Conditions 87 to 92 deal with the Eve Street wetland and require: construction so as to minimise intrusion into the Eve Street wetland; a vegetated buffer between the motorway and the Eve Street wetland; a traffic noise reduction structure between the motorway and the Eve Street wetland; that the location of the motorway near the Eve Street wetland be kept at the lowest possible level; maintenance of the tidal functioning of the tidal feeder channel; and that compensatory wetlands be established and operational prior to the commencement of operation of the motorway. Condition 139 requires RTA to compensate the relevant Council for the loss of the open space area. b. Greater adverse impact on the Marsh Street Wetland The Marsh Street wetland, which is a significant Green and Golden Bell Frog habitat, will be reduced and degraded. Conditions The Marsh Street wetland is not mentioned in the Conditions. Condition 84 deals with the Green and Golden Bell Frog and requires that RTA "comply with conditions of concurrence as determined by NPWS" [National Parks and Wildlife Service]. Condition 139 requires RTA to compensate the relevant Council for the loss of the open space area. Compensatory Wetlands Condition 92 requires the construction of compensatory wetlands, the size, location and cost of which are unknown. The fulfilment of this condition will, in itself, have environmental benefits and detriments. Environmental Benefits The area will gain a new wetland or wetlands. Environmental Detriments a. Earthworks The construction of compensatory wetlands at some of the possible locations will involve earthworks, with associated visual impact, noise and vibration. Conditions Conditions 52 to 62 deal with "Construction Noise and Vibration" and require: the preparation of a detailed "Noise and Vibration Management Procedure", with details of measures to be undertaken; levels to be set; tests and monitoring be carried out; restrictions on construction and blasting hours; preparation of a "Construction Noise and Impact Assessment"; and that vibration levels are not exceeded. Conditions 63 to 65 deal with operational noise and require: the preparation of a "Noise Impact Report"; the monitoring of operational traffic noise; and that fixed plant noise levels comply with EPA criteria. b. Removal of Contaminated Soil RTA's preferred new wetland site has a cover layer of fill over land-fill waste that is variable in chemical composition. More than half of the samples of land fill waste obtained contained elevated to high concentrations of metals and petroleum hydrocarbons. Excavation to form the wetland will involve the removal of the contaminated land fill, with associated problems of disposal and treatment. Conditions Conditions 98 to 102 deal with "Contaminated Spoil" and require that RTA carry out site investigation to determine the degree, nature, etc of contamination and prepare an "Investigation Report". RTA is to remediate if necessary, work is to be done in accordance with EPA guidelines, and reporting is to take place. 183 The Exhaust Stack In the December 1996 proposal, the "Long Tunnel" section of the motorway was to be ventilated by means of three exhaust stacks, each 15 m high located along a ridge. In the December 1997 proposal, the Long Tunnel is to be ventilated by a single stack at Turrella, located in "complex terrain" on the floor of a valley. Its dimensions have not been determined but RTA considers that it must be at least 25m high if ground level concentrations are not to exceed air quality controls. The proposed single stack is to be connected to the Long Tunnel by means of an 825m tunnel which has a diameter of 12m (the "Exhaust Tunnel"). Environmental Benefits The single stack at Turrella will not be in a heavily populated residential area unlike the three stacks previously proposed. Environmental Detriments a. Increased visual impact of the height of the stack The height of the stack is not known, although it is likely to be at least 25 metres. Increasing the height of the stack will increase its visual impact and the number of people affected by that impact. Conditions Condition 76 requires that the stack and air intakes be architecturally sympathetic with other development in the vicinity. b. Increase in air pollution in the Turrella and Undercliffe areas Turrella and Undercliffe will receive a greater concentration of exhaust fumes than under the three-stack proposal. The proposed single stack will be the largest single source of emissions of nitrous oxides in NSW. There is uncertainty as to the interaction of exhausts with the complex terrain of the valley. Future development in the Turrella industrial area or the Undercliffe residential area might lead to further worsening of the air quality as the presence of other tall structures in the area might create a "plume downwash" effect. Conditions Conditions 72 to 81 deal with the proposed single stack and require: that it is designed so that emissions do not result in ambient air quality at ground level exceeding certain goals; that its height exceeds 25m; the installation of a "comprehensive monitoring network" for ambient air quality measurements in the Turrella and Undercliffe residents; the establishment of a "Community Consultative Committee" which will include representatives of the Turrella and Undercliffe areas and relevant Councils and which will define and formulate air quality monitoring requirements, and provide access to and dissemination of monitoring results and other information; the examination of international developments in tunnel emission treatment systems; participation with relevant departments in investigations into air quality; and the setting aside of $0.5m per year for 5 years to be used "towards funding air quality improvement measures". c. Increase in "greenhouse gas emissions" The use of a single stack, rather than three stacks, will result in an additional cost of approximately $2.8m per year to transport the exhaust fumes along the Exhaust Tunnel. The electricity required will add an additional 25.6 tonnes of "greenhouse gas emissions" to the atmosphere. Conditions There is no mention of this environmental detriment in the Conditions. d. Creation of additional spoil The excavation of the Exhaust Tunnel will create an additional 93,305 cubic metres of spoil. Environmental issues associated with spoil are discussed below. 184 Creation of Additional Spoil The December 1996 proposal had approximately balanced spoil figures: spoil to be generated as a result of the construction of the motorway would, to a large extent, be used in other sections of the motorway, in particular for the construction of embankments, especially the embankment proposed at King Georges Road. The December 1997 proposal substitutes an underpass under both King Georges Road and Coolangatta Road for the embankment at King Georges Road, resulting in the loss of the spoil destination and the creation of substantial quantities of additional spoil. Environmental Benefits There are no environmental benefits from the creation of additional spoil. Environmental Detriments a. Visual impact and traffic increase Spoil must be stockpiled, transported and disposed of either by re-use or dumping. The proposed stockpiling locations, re-use sites, transport routes and locations of spoil dumps are unknown, but they are likely to have a visual impact upon the areas in which they are located. Dealing with the spoil will involve many thousands of truck movements with associated noise and vibration. The frequency of truck movements has been estimated at 20 per hour. Conditions Conditions 93 to 97 deal with "Spoil Disposal" and require that: RTA prepare a "Spoil Management Plan" which identifies "how spoil will be handled, stockpiled , reused and disposed of"; RTA provide details of spoil disposal to the EPA; all clean and/or treated spoil be reused/recycled where possible; no spoil is to be disposed of in the ocean; and Councils be provided with plans of routes to be used by construction traffic. b. Excavation of contaminated spoil A proportion of the spoil will be constituted by contaminated soil, sediment and acid sulphate soils, which will require treatment in storage ponds and drying beds before disposal. The locations of the storage ponds and drying beds are unknown, but they are likely to have a visual impact upon the areas in which they are located. They are also likely to have other significant environmental impacts. Conditions Conditions 98 to 102 deal with "Contaminated Spoil" and require RTA to carry out site investigations to determine the degree, nature, etc of contamination and prepare an "Investigation Report"; to remediate if necessary; to do the work in accordance with EPA guidelines; and to report. 185 Public involvement conditions: Each of the aspects of the December 1997 proposal mentioned above is subject to general "public involvement" conditions. These include: the establishment of a complaints telephone number and register for the general public; the advertisement of construction activity so that each local community is kept informed; the progressive preparation of Environmental Management Plans for the sites at construction stage and at operation stages, which include community consultation and notification strategies; and public availability of an Environmental Impact Audit Report. The Conditions also require that a Community Liaison Group be established prior to construction to discuss "detailed design issues and methods for minimising impact on the local community and businesses, including but not limited to: local vehicle, pedestrian and cyclist access requirements, construction stage traffic diversions, groundwater control, settlement, noise control measures, air quality, water quality, flooding, landscaping requirements, and any other issues considered relevant by the Group." RTA is to provide appropriate facilities and information for the Group. The Group may make comments and recommendations about the design and implementation of the proposal which must be considered by RTA. Part 5 of the EPA Act 186 RTA is both the "proponent" Act, subs 110(1). and the "determining authority" Act, subs 110(1) and (2). in respect of the proposed motorway. The construction of a motorway is an "activity" Environmental Planning and Assessment Act 1979, subs 110(1). within the meaning of Part 5 of the Act, which requires environmental assessment Act, subss 111(1), 112(1)(a)(1), (b) and (c1) and 113(1) and (2). of the motorway prior to its construction. The obvious purpose of Part 5 "is to ensure that the possible effects upon the environment of a proposed activity are fully considered before the final decision to undertake it is made". Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353, 360; See also Helman v Byron Shire Council (1995) 87 LGERA 349. The statutory environmental assessment process includes "public involvement and participation". Act, subss 113(1) and (2); cf subs 5(c). Emphasis is given to the statutory policy that members of the public are entitled to have their views considered in the environmental assessment process by s123 of the Act, which gives a general standing to sue to enforce the requirements of Part 5. 187 Particular reference will later be necessary to subss112(4)(b)(i), (6) and (6A) and Division 4 of Part 5 of the Act. Other important provisions include the definitions of "environment" in subs4(1) and "activity" in subs110(1) of the Act, the objects of the Act which are stated in s5, and subss111(1), 112(1)(a)(i), (b) and (c1) and 113(1) and (3), s115 and subs123(1), (2) and (3) of the Act, which respectively provide: " 4 Definitions (1) In this Act, except so far as the context or subject matter otherwise indicates or requires: … environment includes all aspects of the surroundings of man, whether affecting him as an individual or in his social groupings." 110 Definitions (1) In this Part: activity means …

(b) a decision of the Minister to modify (with or without conditions) an approval of any activity under this Division or to refuse to modify such an approval (together with any report of the Director under section 115C)." 197 RTA and the Minister's reliance on Division 4 of Part 5 misconceives its operation. Division 4 of Part 5 expands the environmental assessment process provided for in Part 5. See subss 115A(2) and (3), 115B(1), (3) and (7), 115BA(4), (5), (7) and (8), 115BB(1) and (3) and 115C(1) and (2) In particular, an additional requirement of ministerial approval is imposed. Subs 115A(1), subject to subs 115B(9). 198 More importantly for present purposes, Division 4 of Part 5 of the EPA Act only applies to an activity for which an environmental impact statement has been obtained. See subss 115A(2)(a), 115B(1) and 115F. As part of their argument on this aspect of the dispute, the Minister and RTA submitted that Division 4 of Part 5 does not require an environmental impact statement in respect of a modified activity which eliminates or reduces the detrimental effect on the environment of an activity which has been the subject of a duly notified and exhibited environmental impact statement and public representations report. For present purposes, it can be assumed that that is so. 199 The Minister's directive to activate Division 4 of Part 5 of the EPA Act related to the July 1997 proposal, and the construction of the motorway in accordance with that proposal was the material activity for the purposes of that Division. 200 The July 1997 proposal contained broadly similar alterations to the December 1996 proposal to those contained in the December 1997 proposal, which made only limited changes to the alterations proposed by the July 1997 proposal, (e.g., in relation to the height of the "Long Tunnel" exhaust stack at Turella), and imposed additional conditions. 201 If the alterations to the December 1996 proposal contained in the December 1997 proposal were a modification of the December 1996 proposal which reduced the detrimental effect of the construction of the motorway on the environment, then RTA and the Minister have no need to resort to Division 4 of Part 5 of the EPA Act. The Group did not submit to the contrary. 202 If, however, it was accepted on all sides the alterations to the December 1996 proposal contained in the December 1997 proposal are not a modification of the December 1996 proposal which will reduce the detrimental effect of the construction of the motorway on the environment, the alterations to the December 1996 proposal contained in the July 1997 proposal were not a modification of the December 1996 proposal which had that effect. That being the case, Division 4 of Part 5 of the EPA Act did not apply to the construction of the motorway in accordance with the July 1997 proposal; EPA Act, subs 115A92)(a). the Minister was not entitled to activate Division 4 of Part 5 in relation to the July 1997 proposal until an environmental impact statement had been obtained in respect of the construction of the motorway in accordance with that proposal; EPA Act, subs 115F(2). RTA was not entitled to seek the Minister's approval of the July 1997 proposal under Division 4 of Part 5; subs 115B(1). and the Minister was unable to give his approval. Act, subs 115A(3) & 115B(3). See also subs 115BB(1) & 115C(1) & (2). These provisions, and the outcome of their application in the present matter, are entirely consistent with the general statutory environmental process and the policy which is manifest. 203 It follows that Division 4 of Part 5 does not assist RTA or the Minister, and the dispute between the parties must be resolved by reference to subs 112 (4)(b)(i) of the EPA Act. The Key Issue - Does subs112(4)(b)(i) of the EPA Act apply? 204 RTA's power to construct the motorway in accordance with the December 1997 proposal is subject to compliance with Part 5 of the EPA Act. More specifically, there is a general legislative prohibition against carrying out the construction of the motorway in accordance with that proposal until an environmental impact statement has been notified and exhibited and public representations have been considered in respect of the alterations to the December 1996 proposal which are contained in the December 1997 proposal. Subsection 112(4)(b)(i) provides an exception from that prohibition, which must be established by RTA. Vines v Djordjevitch (1955) 91 CLR 512, Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88; Pan Laboratories Pty Ltd v DPP (Cwlth) (1991) 41 NSWLR 727; Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (1998) 153 ALR 529. It would plainly be inconsistent with the legislative scheme if the general environmental assessment process need not be followed if it cannot be decided whether proposed alterations to an activity would decrease or increase the detrimental effect of the activity on the environment. 205 The parties equated a modification within the meaning of subs 112(4)(b) to an alteration which does not effect a "radical" transformation. Sydney City Council v Ilanace Pty Ltd (1984) 3 NSWLR 414, 421; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, 474. That meaning does not appear in the Australian Concise Oxford Dictionary, 2nd ed. Although I am unsure that an alteration which is significant or substantial but not "radical" Which I take to mean "fundamental". is properly described as a modification, especially having regard to the use of the verb "modify" elsewhere in the EPA Act, For example, ss102 and 103 of the EPA Act. I will proceed on the basis adopted by the parties, which at least is consistent with a legislative intent that the general statutory process of environmental assessment is to be followed in relation to an altered activity except in specified limited circumstances. Thus, the parties effectively agreed that subs 112(4)(b)(i) does not apply to a proposed alteration which would be more than a modification of an activity even if the alteration would eliminate or reduce the detrimental effect of the activity on the environment. Of course, even an alteration which is only a modification of an activity is impermissible under subs 112(4)(b)(i) unless it will "… eliminate or reduce the detrimental effect of the activity on the environment". Limiting the power given by subs 112(4) in this manner ensures an apposite compatibility between that subsection and the objects of the Act which are stated in s 5 and given effect in Part 5. 206 RTA and the Minister placed at the forefront of their argument on this critical part of the case a submission that RTA's opinion (shared by the Minister) is conclusive on the matter which is the subject of subs112(4)(b)(i). More specifically, it was submitted that RTA's opinion that the alterations to the December 1996 proposal contained in the December 1997 proposal are a modification of the December 1996 proposal which will reduce the detrimental effect of the construction of the motorway on the environment was not susceptible of challenge in the Land and Environment Court, and is not susceptible to challenge in this Court, except on the basis of established, limited grounds of legal error which justify intervention by a court exercising supervisory jurisdiction in relation to administrative decisions when there is no statutory right of appeal or provision for review of such decisions on the merits. See, for example, Bruce v Cole (1998) 45 NSWLR 163, 183E-187C, 202E, 297B. The argument proceeded from there to the further submission that none of the accepted grounds for a challenge to RTA's opinion that the requirements of subs112(4)(b)(i) are satisfied is established. While I am by no means satisfied that that is so, it is unnecessary to pursue that issue. 207 Most, but not all, of the Land and Environment Court's jurisdiction Land and Environment Court Act, Part 3.is concerned with challenges to administrative decisions, often, but not always, by way of "appeal". Land and Environment Court Act, subs 17(a), (aa) and (c) - (g), 18(a) - (e), 19(a) - (bi), (d), (fi), (gi) and (h), and 20 (d) Except where legislation otherwise provides, the Court is clearly intended to apply the ordinary legal principles which govern challenges to administrative decisions. 208 For example, the Land and Environment Court is frequently called upon to apply those principles in proceedings which challenge the validity of development consents granted by local authorities. As recent decisions of this Court exemplify, Londish v Knox Grammar School (1997) 97 LGERA 1; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; Franklins Ltd v Penrith City Council & Campbells Cash and Carry Pty Ltd [1999] NSWCCA 134. EPA Act, subs 112(1). See, for example, Guthega Development Pty Ltd v Minister Administering the National Parks (1987) 7 NSWLR 353. the orthodox approach is to test the validity of such consents on the basis that they are administrative decisions, not by reference to the post-decisional formal act of notification of the decision to the applicant and, where appropriate, other parties. In any event, the same outcome would follow from the obvious conclusion that a valid grant of consent is conditional upon a valid decision to grant consent. Frequently, as the three recent decisions of this Court mentioned above illustrate, whether a decision can be challenged turns on whether or not a matter in issue is a "jurisdictional fact", "collateral fact", or "condition precedent" to a valid decision. Such a condition can involve an objective factual state or the decision or opinion of a designated official, authority or tribunal that the factual state exists. As the Chief Justice stated in Timbarra, in a judgment with which the President and Meagher JA agreed: "The issue … turns, and turns only on the proper construction of the Statute." 209 The principles which govern the supervision of administrative decisions apply to challenges to administrative actions, or threatened administrative actions, for example in proceedings in which the issue is whether a statutory pre-condition to the exercise of a power by a public official or authority has been satisfied, if the statutory pre-condition is not an objective factual state but the opinion or decision of the public official or authority or some other designated person or body. No doubt a person or body with a conditional power to act ordinarily makes a decision to take action prior to doing so, and such a decision will commonly involve the formulation of an opinion that the statutory precondition has been satisfied. It does not follow that a challenge to past or proposed action cannot succeed unless such a decision can be successfully challenged by reference to the principles which control the supervision of administrative decisions. Two entirely different situations must be contrasted; the statutory precondition to the exercise of a power can be either the existence of an objective factual state or an opinion that the factual state exists. As was said in Timbarra, it is necessary to construe the material legislation. If on the proper construction of the legislation an objective factual state is an essential preliminary to the valid exercise of a statutory power to act, in this case to construct the motorway, the power cannot be exercised if the factual state does not exist by reference to an erroneous opinion that the factual state does exist. 210 There is nothing in s112 of the Act which indicates that RTA's (or the Minister's) opinion that the alterations to the December 1996 proposal contained in the December 1997 proposal modified the December 1996 proposal so as to reduce the detrimental effect of the construction of the motorway on the environment is conclusive. It is convenient to postpose consideration of whether RTA's opinion on the environmental effect of the alterations which the December 1997 proposal makes to the December 1996 proposal is relevant, if not conclusive. On the contrary, there is a clear distinction drawn between subs 112(4)(b)(i), in which a "determining authority" is also the "proponent" in respect of an "activity", and subs 112(4)(a)(i), in which the "determining authority" is not the "proponent". When a determining authority is not the proponent, the determining authority's "opinion" determines whether the proponent may carry out an activity, and, if so, what may be done and on what conditions. However, the objective factual state, not the determining authority's opinion, is the condition to which a proponent's power to carry out the relevant activity is subjected by subs 112(4)(b)(i), which only applies when the proponent is also the determining authority. The reason for the differences of approach is obvious. 211 While the opinions of RTA and the Minister are therefore not conclusive that the alterations to the December 1996 proposal contained in the December 1997 proposal modified the December 1996 proposal so as to reduce the detrimental effect of the construction of the motorway on the environment, a court required to determine that issue is entitled, if not bound, to take those opinions into account See, for example, Law Society of NSW v Foreman (1994) 34 NSWLR 408,410G, 440B. Compare the doctrine of "agency deference" which exists in some jurisdictions., and the Land and Environment Court did not err in doing so. However, it was obliged to make its own decision on the issue. Law Society of NSW v Foreman (1994) 34 NSWLR 408, 440D-G, 471 D. Similarly, it is appropriate for this Court to have regard to the opinions of RTA and the Minister, and, in conformity with the usual principles applicable to an appeal by way of rehearing, deference should be paid to the Land and Environment Court's findings. Nonetheless this Court is required to determine for itself whether the alterations to the December 1996 proposal contained in the December 1997 proposal modified the December 1996 proposal so as to reduce the detrimental effects of the construction of the motorway on the environment. Supreme Court Act, subs 75A (5), State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306; see also Fleming v R (1998) 158 ALR 379. 212 In my opinion, that conclusion is not reasonably open. I have earlier set out a summary of the material details of the two proposals and their respective beneficial and detrimental environmental effects. No good purpose would be served by a discussion of the widely divergent activities and environmental effects which are there recorded. I consider it impossible to rationally compare either the different environmental effects of the individual alterations to the December 1996 proposal and the different environmental effects of the corresponding parts of the December 1996 proposal or the aggregate environmental effects of all such alterations and the aggregate environmental corresponding parts of the December 1996 proposal. It is similarly impossible to compare the respective environmental effects of carrying out the two proposals, i.e., the December 1996 proposal and the December 1997 proposal. It makes no difference in my opinion whether it is permissible to take both beneficial and detrimental environmental effects into account or only detrimental environmental effects are to be considered. 213 It remains to be decided whether the conditions affecting the December 1997 proposal produce a different result. 214 The Group did not submit that a conditional modification is impermissible, and, when a power of modification is properly the focus of attention, that might be correct. North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468. However, as I have attempted to demonstrate, RTA's material power for present purposes is a power to carry out an activity, namely, construct the motorway. A determining authority's powers under subs112(4)(a) and 112(4)(b) can be usefully contrasted. While subs112(4)(a) is concerned with a "determining authority" in its capacity as decision-maker, subs112(4)(b) is substantially concerned with a "determining authority" which is a "proponent", hence, the alternatives of carrying out a modified activity which reduces the detrimental effect of the activity on the environment or refraining from carrying out the activity. 215 I will, however, further consider subs112(4)(b)(i) on the assumption that an activity, and more particularly a modified activity, may be associated with conditions, and that such conditions may relate to matters which bear upon the environmental effects of the activity, including matters relating to the manner of its performance. 216 Such assumptions in favour of RTA and the Minister present as many problems as they solve. The main advantage of the conditions to the December 1997 proposal is that, broadly speaking, they are directed at reducing the detrimental effects of the construction of the motorway in accordance with that proposal. However, the conditions simultaneously highlight the impossibility of comparing the respective detrimental effects of constructing the motorway in accordance with the December 1996 proposal or the December 1997 proposal. The imprecision of the conditions, and the uncertainty of their practical operation, do not make it easier to conclude that the construction of the motorway in accordance with the December 1997 proposal, including the implementation of the conditions, will detrimentally affect the environment less than the construction of the motorway in accordance with the December 1996 proposal. 217 In what has been said to this point, I have dealt only tangentially with the Group's second argument. It is unnecessary for me to discuss it in detail. However, I am of opinion that an activity must be no less specific, certain and final than the subject matter of a development consent and for much the same reasons. What is proposed to be carried out must be able to be tested for compliance with the applicable legislative scheme and what is in fact done must be able to be tested against what was authorised through compliance with the statutory process. cf Mison v Randwick Municipal Council (1991) 23 NSWLR 734, 737, 738, 740. 218 There is one condition which merits specific mention; namely, that which I have earlier described as the "Public Involvement Conditions". While those conditions recognise the role of public participation in the environmental assessment process, they are an inadequate and invalid substitute for the rights of participation accorded by the EPA Act. 219 More generally, I consider it fundamentally incompatible with the statutory environmental assessment process, including the intended public participation, for problems merely to be broadly identified and left for solution or management by a body such as RTA, or resolution by a different authority, with a limited degree of public consultation, as an activity is carried out. 220 In what I have said to this point, I have treated the "environment" as the general surroundings, conditions and circumstances in the localities which will be affected by the construction of the motorway. However, the EPA Act has its own definition of "environment". When that definition is inserted into subs 112(4)(b)(i), it permits RTA to carry out the December 1997 proposal only if it modifies the December 1996 proposal so as to reduce its environmental effect on "… all aspects of the surroundings of man, whether affecting him as an individual or in his social groupings". In my opinion, alterations to the December 1996 proposal which are contained in the December 1997 proposal will impose new, significant, detrimental effects on different localities and different persons from those who had the opportunity to make representations with respect to the December 1996 proposal when the December 1996 environmental impact statement was duly notified and exhibited, and the construction of the motorway in accordance with the December 1997 proposal is beyond the power of modification contained in subs 112(4)(b)(i). 221 The approach which I prefer doubtless imposes frustrating constraints upon the carrying out of major public works. However, that is not the result of the importation of requirements of procedural fairness or the implication of unstated provisions into the EPA Act, but the consequence of giving effect to beneficial policies which respond to the importance of preservation of the environment and the living conditions of persons potentially affected by public activities. Those policies are nominated in the objects of that Act EPA Act, s5. and expressly provided for in the complex environmental assessment process spelt out in Part 5. 222 Considered as it must be in that context, the power of modification contained in subs 112(4)(b)(i) is of modest scope, and its limited application does not extend to the multiple major alterations to the December 1996 proposal which are contained in the December 1997 proposal with their mixed beneficial and detrimental environmental effects. Conclusion 223 RTA cannot carry out the December 1997 proposal until another environmental impact statement has been duly notified and exhibited in respect of the alterations to the December 1996 proposal contained in the December 1997 proposal. 224 I would allow the appeal with costs, make a declaration in terms of the preceding paragraph, and, if necessary, add an injunction in appropriate terms. RTA and the Minister must pay the Group's costs in the Land and Environment Court. Attached Schedule

TRANSPORT ACTION GROUP AGAINST MOTORWAYS INC v ROADS & TRAFFIC AUTHORITY & ANOR

At a glance

Court

Decision date

Before

Source

Judgment (148 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (38)

Cited By (24)