Tugun Cobaki Alliance Inc v Minister for Planning and RTA

KEY ISSUES: Judicial Review :- Construction and Interpretation - Minister's approval under Pt 3A - validity - relevant considerations - savings and transitional regulation - inconsistency with Act - validity

Environmental Planning and Assessment Act 1979 Pt 3A, Pt 4, Pt 5 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005 LEGISLATION CITED: Environmental Planning and Assessment Amendment (Major Projects - Transitional Provisions) Regulation 2005 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy No 14 - Coastal Wetlands State Environmental Planning Policy No 63 - Major Transport Projects Threatened Species Conservation Act 1995

Association for Berowra Creek Inc v Minister for Planning and Another (2003) 124 LGERA 99; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; Bruce v Cole and Others (1998) 45 NSWLR 163; Bushell and Another v Secretary of State for the Environment [1981] AC 75; Carroll and Others v Mijovich and Others (1991) 25 NSWLR 441; Citron v Zündel (No 4) (2002) 41 CHRR D/274 (unreported, CHRT, Chairperson C Pensa, Member R Devins, 18 January 2002); Chapman and Others v Tickner and Others (1995) 55 FCR 316; Dainford Limited v Smith and Another (1984) 155 CLR 342; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; El Cheikh v Hurstville City Council and Others (2002) 121 LGERA 293; FAI Insurances Limited v The Honourable Sir Henry Arthur Winneke and Others (1982) 151 CLR 342; Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353; James Edward Jeffs and Others v New Zealand Dairy Production and Marketing Board and Others [1967] AC 551; Jones v Dunkel and Another (1959) 101 CLR 298; Jones v Toben [2002] FCA 1150; Kevin R Whelpton & Associates (Aust) Pty Ltd and Another v Attorney-General (Cth) 14 FCR 293; Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277; Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; Maunsell v Olins [1975] AC 373; CASES CITED: Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24; Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381; Minister for Aboriginal Affairs and Torres Strait Islander Affairs v State of Western Australia and Ors (1996) 67 FCR 40; No Dump Residents Association Inc v Collex Pty Limited [2006] NSWCA 94; O'Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1983) 153 CLR 1; Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319; Pine Rivers Shire Council v Dorfler (1993) 80 LGERA 315; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; Prineas v Forestry Commission of New South Wales and Others (1984) 53 LGRA 160; Prineas v Forestry Commission of New South Wales and Others (1984) 49 LGRA 402; Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355; Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; The State of South Australia v Tanner and Others (1989) 166 CLR 161; The King v Hickman and Others; Ex parte Fox and Another; The King v Hickman and Others; Ex parte Clinton and Others (1945) 70 CLR 598; Tickner and Others v Chapman and Others (1995) 57 FCR 451; Transport Action Group Against Motorways Inc v Road and Traffic Authority and Another (1999) 46 NSWLR 598; WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94; Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707

DATES OF HEARING: 26/06/2006, 27/06/2006 (hearing) 30/06/2006, 04/07/2006, 10/07/2006 (further written submissions)

APPLICANT Mr T Robertson SC with Ms L Byrne SOLICITORS Environmental Defenders' Office Ltd

FIRST RESPONDENT LEGAL REPRESENTATIVES: Dr J Griffiths SC with Mr J Kirk SOLICITORS Department of Planning

SECOND RESPONDENT Mr N Williams SC with Mr A Galasso SOLICITORS Blake Dawson Waldron

TABLE OF CONTENTS Paragraphs Introduction 1 - 14 Background The proposal 15 - 16 Steps taken under Pt 5 EPA Act 17 - 21 New legislation 22 - 49 The response to the new legislation 50 - 59 The Director-General's report 60 - 70 First and second claims 71 - 85 Third, fourth and sixth claims 86 The parties' submissions 87 - 94 The construction issues 95 - 134 Section 75J(2)(b) 135 - 137 The advice provided by public authorities 138 - 147 The RTA's response to the issues raised in the submissions 148 - 160 Conclusion on s 75J(2)(b), advices from public authorities and submissions report 161 The proponent's environmental assessment 162 - 166 Matters related to the third and fourth claims 167 Reliance on summaries 168 - 176 Section 75J(1)(b) 177 - 178 Section 75X(5) 179 - 184 Seventh and eighth claims 185 - 195 Conclusions and orders 196

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MINISTER FOR PLANNING First Respondent

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES Second Respondent

JUDGMENT Jagot J: Introduction 1 The applicant claimed that an approval granted by the Minister for Planning on 21 December 2005 for the carrying out of the Tugun Bypass project is invalid. The Tugun Bypass is a 7 kilometre, 4 lane, restricted access motorway between Tweed Heads in New South Wales and Currumbin in Queensland. It generally follows the alignment of the main runway at the Gold Coast Airport, but is located west of the airport other than in one section (where a tunnel under the airport is proposed).

2 The second respondent (the "RTA") is the proponent of the Tugun Bypass project in New South Wales.

3 The Minister granted the approval under Pt 3A of the Environmental Planning and Assessment Act 1979 (the "EPA Act"). The Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (the "2005 Amendment Act") inserted Part 3A in the EPA Act. Schedules 1, 4, 5 and 6 of the 2005 Amendment Act commenced on 1 August 2005.

4 The Tugun Bypass project commenced under Pt 5 of the EPA Act, prior to its amendment by the 2005 Amendment Act. An environmental impact statement and species impact statement were obtained and placed on public exhibition. As the RTA was both the proponent and a determining authority with respect to the activity where an environmental impact statement had been obtained, under Div 4 of Pt 5 of the EPA Act, the Minister was required to approve the carrying out of the activity. Before the RTA had sought the Minister's approval, however, the 2005 Amendment Act repealed Div 4 of Pt 5.

5 The 2005 Amendment Act also amended Sch 6 to the EPA Act (given effect by s 159) to enable regulations to contain provisions of a savings or transitional nature consequent on the enactment of the 2005 Amendment Act. The Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005 (the "2005 Amendment Regulation") contained provisions (cl 8J(1) to (3)) which enabled the Director-General to accept or adopt certain steps taken under Pt 5 as matters done under Pt 3A. The Director-General accepted the steps taken under Pt 5 with respect to the Tugun Bypass project for the purposes of Pt 3A.

6 The applicant's claims arise under Pt 3A of the 2005 Amendment Act, and may be grouped as follows.

7 The applicant's first and second claims were that, pursuant to Pt 3A, the Director-General required the RTA to provide a document (styled "statement of commitments"), which the provisions of Pt 3A then required to be made publicly available. The document was provided by the RTA, but not made publicly available by the Director-General. This was a breach of a requirement identified by Pt 3A as mandatory and meant that a pre-condition to the Minister's power of approval (required objectively to be satisfied), had not been satisfied. Accordingly, the necessary consequence was invalidity of the approval.

8 The applicant did not press its fifth claim. The applicant's third, fourth and sixth claims were that the provisions of Pt 3A required the Director-General to: - (i) include in the Director-General's report to the Minister three classes of documents, and (ii) physically deliver to the Minister the Director-General's report (including those three classes of documents). The three classes of documents were the proponent's environmental assessment (that is, the environmental impact statement and species impact statement), advice provided by public authorities on the project and the proponent's response to issues raised in submissions. Insofar as the EPA Act might contemplate electronic delivery of documents, the applicant claimed that a document was given to the Minister electronically only when actually downloaded by or on behalf of the Minister. The applicant claimed that neither physical delivery nor download of the documents had occurred. The applicant submitted that, by reason of these circumstances, the Minister failed to consider the three classes of documents as required, and also failed to consider another relevant matter (advice provided by the RTA's portfolio Minister). A pre-condition to the Minister's power of approval (required objectively to be satisfied), had not been satisfied. Accordingly, the necessary consequence was invalidity of the approval.

9 The applicant's seventh and eighth claims related to the 2005 Amendment Regulation, in particular cl 8J(3). The applicant claimed that cl 8J(3) was invalid in that the clause was not authorised by Sch 6 to the EPA Act and was inconsistent with the provisions of Pt 3A. If invalid, then the functions exercised by the Director-General in reliance on cl 8J(3) were also invalid. The first and second claims above were supported on this basis in the alternative. If valid, then cl 8J(3) was inapplicable, as the RTA made a fresh application under Pt 3A, and thus was bound by that Part as a whole.

10 I have concluded that the applicant's claims cannot be upheld. With respect to the first and second claims, I have found that the Director-General did not in fact exercise the function claimed by the applicant. In consequence, there was no obligation on the Director-General to make the RTA's "statement of commitments" publicly available under s 75H(3).

11 The third, fourth and sixth claims may be subdivided into issues relating to: - (i) the Director-General giving documents to the Minister, and (ii) the Minister considering documents. I have concluded that one document (the proponent's response to issues raised in submissions, or "submissions report")) was not required to be either given to or considered by the Minister. Otherwise, on the first issue, I have concluded that the provisions of Pt 3A did not require the Director-General physically to include the other two classes of document (the proponent's environmental assessment and the advice provided by public authorities on the project) in the Director-General's report to the Minister, or physically to deliver that report (and the documents) to the Minister. The combination of delivery methods used by the Director-General satisfied the requirements of Pt 3A. That is, physical delivery of a file to the Minister, which included a hard copy of the Director-General's report and hard copies of the advice provided by public authorities on the project, but not a hard copy of the proponent's nine volume environmental assessment. Instead of a hard copy of that document being included in the Director-General's report, the Director-General had arranged for that document (all nine volumes) to be uploaded onto the Department of Planning's website. The Director-General's report to the Minister identified the requirements of s 75I(2) of the 2005 Amendment Act (documents to be included in the Director-General's report), referred to the proponent's environmental assessment, and provided to the Minister the reference to the Department of Planning's website address for that document.

12 On the second issue, I have construed the provisions of Pt 3A as requiring the Minister to consider the Director-General's report proper and the advice provided by public authorities on the project (that is, as mandatory relevant considerations). I have also found that the Minister did so. I have concluded that Pt 3A did not require the Minister to consider either the proponent's response to issues raised in submissions or the proponent's environmental assessment, but left it to the Minister to decide whether or not to consider those documents. I have found, in any event, that the Minister considered those documents by considering the Director-General's report proper which contained extensive reference to both the proponent's response to issues raised in submissions and the proponent's environmental assessment, and otherwise by considering the documents within the file delivered to the Minister for the specific purpose of the Minister's decision on the project.

13 With respect to the seventh and eighth claims, I have concluded that cl 8J(3) of the 2005 Amendment Regulation, in its application to the project, was authorised by Sch 6 to the EPA Act and was not inconsistent with Pt 3A. I have also concluded that cl 8J(3) (and cl 8J(1) and (2)) applied to the Tugun Bypass project.

15 State Environmental Planning Policy No 63 - Major Transport Projects ("SEPP 63") provided that a person may carry out development for the purposes of a major transport project without development consent (cl 6). The Tugun Bypass was included in Sch 1 to that policy and thus was development permissible without consent and subject to the procedures in Pt 5 of the EPA Act (cl 3(1)). An amendment to SEPP 63 on 2 September 2005 ensured (insofar as necessary) that part of the Tugun Bypass which crossed an area of wetland to which State Environmental Planning Policy No 14 - Coastal Wetlands applied, did not become subject to Pt 4 of the EPA Act as development permissible only with consent (cl 5(2)). As such, the Tugun Bypass as a whole was an "activity" as defined in s 110(1) of the EPA Act.

16 The Queensland Department of Main Roads originally proposed to undertake the Tugun Bypass, including the section within New South Wales, and (I infer) carried out significant preparatory work to that end. Subsequently, it was decided that the RTA would be the proponent for that part of the Tugun Bypass within New South Wales. Accordingly, under Pt 5 of the EPA Act, the RTA was the proponent of, and a determining authority in relation to, that activity insofar as it was located within New South Wales.

17 In accordance with s 112 of the EPA Act, the RTA determined that an environmental impact statement and species impact statement in respect of the activity was required to be prepared (s 112(1) and s 112(1B)). This triggered a series of obligations in Pt 5 of the EPA Act and the Environmental Planning and Assessment Regulation 2000 (the "EPA Regulation"). The RTA was to consult with the Director-General of the Department of Planning about the environmental impact statement. The Director-General was to issue the Director-General's requirements for the preparation of the environmental impact statement (cl 231 of the EPA Regulation). The environmental impact statement was to be exhibited in accordance with s 113 of the EPA Act. As the RTA was the proponent of, and a determining authority in relation to, the activity for which it had obtained an environmental impact statement, the RTA was required to obtain the Minister's approval to the carrying out of the activity under Div 4 of Pt 5 of the EPA Act.

18 The RTA sought the Director-General's requirements for the preparation of the environmental impact statement for the Tugun Bypass on 22 September 2004. The Director-General issued the requirements on 1 October 2004. In addition to the standard requirements specified in cll 229 and 230 of the EPA Regulation, the Director-General required the environmental impact statement to address 44 key issues, grouped under headings (planning and strategic, alternatives, construction, ecology - general, ecology - SEPP 14 wetlands, water quality, hydrology and flooding, traffic and transport, noise and other). Two of the standard requirements (cl 230 and Sch 2, items 1 and 5, of the EPA Regulation) were that the environmental impact statement contain a summary and compile in one section the measures referred to in item 4(d) of Sch 2 (namely, "a full description of the measures proposed to mitigate any adverse effects of the development or activity on the environment").

19 The environmental impact statement obtained was voluminous, as is common for activities subject to Div 4 of Pt 5. With the species impact statement, it comprised nine volumes of material, excluding the summary brochure. The volumes are not consecutively page numbered, but each contained about 300 to 400 pages of text, diagrams, graphs, statistics, survey and modelling details, and analyses. (1) Volume 1 contained a description of the Tugun Bypass, the approvals process, the community and stakeholder consultation, the need for the Bypass, the alternatives and preferred option, the proposed construction of the Bypass, the impacts of the Bypass on the physical and biological environment, a hazard and risk analysis, the impacts of the Bypass on the socio-economic environment, noise and vibration, cultural heritage, visual assessment, cumulative impacts, environmental management and monitoring, economic assessment, environmental sustainability, justification, as well as some 86 tables, 68 figures, and eight appendices. One of the tables (table 18.1) compiled the proponent's proposed mitigation measures.

(2) Volume 1 (technical papers) contained a study of the community consultation process including the plan for consultation, the scope of the consultation, the consultation findings and conclusions. The appendices included various fact sheets, media releases, survey results and minutes of community meetings. The volume also contained an engineering design study and a traffic and transport study. The first study included an engineering design assessment of the Tugun Bypass (matters such as road geometry, road bridges, tunnel and approach ramps, road pavements, road shoulders, lay-by areas, maintenance areas, median cross-overs, truck parking areas, line marking and signs, and help telephones). The second included a traffic/transport design and impact assessment.

(3) Volume 2 (technical papers) contained a geotechnical assessment, an acid sulphate soil management statement, acid sulphate soil field test results, acid sulphate soil laboratory test results, groundwater analysis results, a contaminated land study (including landfill and groundwater test and monitoring results), a flooding and hydrological assessment, a surface water quality assessment, and a groundwater assessment (including aquifer test results).

(4) Volume 3 (technical papers) contained a noise and vibration assessment, including details of noise modelling procedures, model inputs, calculations and charts, traffic survey data, and many pages of tables of predicted noise levels on various assumptions. It also contained an air quality assessment, including air quality criteria, impacts and mitigation measures, greenhouse gas impacts and various monitoring data and traffic counts.

(5) Volume 4 (technical papers) contained a flora and fauna assessment (including details of survey methods, existing habitats, survey results, sites of significance, potential impacts, mitigation measures, cumulative impacts, and construction and operation management and monitoring). The appendices included studies of terrestrial and estuarine birds.

(6) Volume 5 (technical papers) contained a survey of reptiles, amphibians and mammals, an assessment of amelioration and monitoring measures for the conservation of herpetofauna, a study of the status and distribution of the Cobaki Long-nosed Potoroo population, surveys for coastal planigale, survey for a species of land snail, an aquatic flora and fauna study, lists of recorded flora and fauna species, and a report on compensatory habitat policies.

(7) Volume 6 contained an urban design, landscape and visual impact assessment, a cultural heritage assessment, a land use planning and socio-economic assessment, and a hazard and risk assessment.

(8) Volume 7 (designated volume 1 - species impact statement) contained a species impact statement prepared in accordance with the Threatened Species Conservation Act 1995 (ss 109 - 111).

(9) Volume 8 (designated volume 2 - species impact statement) contained the appendices to the species impact statement (requirements for preparation, detailed survey methods, weather conditions, flora and fauna species lists, habitat requirements and impact assessment tables, eight part tests of significance and habitat maps).

20 A summary brochure was referred to in the environmental impact statement. Page XXVI of Main Volume 1 identified the summary brochure as one of the documents on which the public was invited to make submissions. The summary brochure largely reflected the terms of the executive summary section of the environmental impact statement, but also included a series of figures (from the main body of the environmental impact statement) depicting aspects of the Tugun Bypass. It set out a brief description of the proposal, the procedures involved in its environmental assessment, the development of the proposal, the reasons why the Tugun Bypass is needed, the other options considered, the aspects of the Tugun Bypass and what they will look like (including various figures), its relationship to the Gold Coast airport, crossing points, construction, conclusions about the impacts of the proposal (planning and land use, traffic and transport, noise, air quality, cultural heritage, water quality and flooding, groundwater, flora and fauna, social and economic effects, visual quality and landscape character, hazard and risk), cumulative impacts, measures to reduce impacts, benefits, the conclusions of the environmental impact statement, and details about how to make a submission.

21 In accordance with s 113 of the EPA Act, the RTA exhibited the environmental impact statement and species impact statement between 13 December 2004 and 15 March 2005. Under s 113(3), the RTA was required to forward to the Director-General copies of any representations made by any person with respect to the activity during the exhibition of the environmental impact statement. After the RTA had complied with these obligations it would then be able to seek the Minister's approval to carry out the activity (s 115B(1) and s 115A).

22 After the RTA had complied with the requirements set out in s 115B(1) (which were required to be completed before it could seek the Minister's approval under s 115A), but before it had sought that approval, the 2005 Amendment Act commenced. The 2005 Amendment Act was assented to on 16 June 2005. Schedules 1, 4, 5 and 6 of the 2005 Amendment Act commenced on 1 August 2005.

23 The bill that became the 2005 Amendment Act was read a second time on 27 May 2005 by the Minister for Infrastructure and Planning, and Minister for Natural Resources. The Minister said that the legislation "introduces new mechanisms to ensure that the Government delivers quickly and efficiently on its infrastructure programs". The legislation was to "cut red tape by reducing time, cost and complexity in the assessment of" projects of State significance and major projects, whilst strengthening "the rigour, transparency and independence of the process of assessment". The legislation was necessary as the "…wellbeing of our economy depends on business being able to work with certainty, a minimum of risk, low transaction costs, and appropriate levels of regulation. This bill demonstrates the Government's determination to take decisive action to achieve these objectives". (Hansard, 27 May 2005, p 16322). The explanatory note that accompanied the bill also emphasised that the reforms were to apply to "major infrastructure and other projects of significance to the State".

24 Part of the decisive action taken in the 2005 Amendment Act was the repeal of Div 4 of Pt 5 of the EPA Act (cl [27] of Sch 1). The 2005 Amendment Act introduced a new part to the EPA Act, Pt 3A. Part 3A, Div 1, identified the concepts of "critical infrastructure project" and "major infrastructure development" (s 75A). Under s 75B, the Minister could declare (by State environmental planning policy or by order published in the Gazette) kinds of development to be a project to which Pt 3A applied - namely, (a) "major infrastructure or other development that, in the opinion of the Minister, is of State or regional environmental planning significance", and (b) "major infrastructure or other development that is an activity for which the proponent is also the determining authority (within the meaning of Part 5) and that, in the opinion of the proponent, would (but for this Part) require an environmental impact statement to be obtained under that Part".

25 The Minister declared, by order published in the Gazette on 29 July 2005, "development that is an activity for which the proponent (that is not a local council or county council) is also the determining authority and that, in the opinion of the proponent, would (but for this order) require an environmental impact statement to be obtained under Part 5" to be projects to which Pt 3A applied. By dint of these provisions, and because the Tugun Bypass was development for the purpose of a road within the meaning of "major infrastructure development", the Tugun Bypass became a project to which Pt 3A applied.

26 A savings provision inserted into Sch 6 to the EPA Act (which has effect by s 159), cl 88(1), did not apply to continue the operation of Div 4 of Pt 5 with respect to the Tugun Bypass. That provision, in terms, applied only to an activity for which the Minister's approval under Div 4 of Pt 5 was sought prior to repeal of Div 4 of Pt 5. As approval under Div 4 of Pt 5 of the EPA Act had not been sought for the Tugun Bypass before the repeal of that Division, cl 88(1) was inapplicable.

27 Clause 1(1) of Sch 6 to the EPA Act was amended by including reference to the 2005 Amendment Act as one of the statutes with respect to which regulations could "contain provisions of a savings or transitional nature consequent on the enactment" of that Act. Clause 87 of Sch 6, also introduced by the 2005 Amendment Act into the new Pt 17 (in which cl 88 is located), provided that the regulations "made under Part 1 of this Schedule have effect despite anything to the contrary in this Part".

28 The 2005 Amendment Regulation was published in the Gazette on 29 July 2005 and commenced on the commencement of Pt 3A of the EPA Act (that is, 1 August 2005). The explanatory note published with the 2005 Amendment Regulation said that its object was to "make provision consequent on the commencement of the amendments made by" the 2005 Amendment Act, and that it had been made under the EPA Act including s 75Z, 157 and Sch 6.

29 Insofar as relevant at this stage, the 2005 Amendment Regulation as made included cl 8J as follows. 8J Transitional provisions

(1) The Director-General may adopt (with or without modification), as environmental assessment requirements for a project or concept plan, environmental assessment requirements issued by the Director-General under Part 4 or under Division 4 of Part 5 of the Act with respect to any development or activity before it becomes a project to which Part 3A of the Act applies.

(2) The Director-General may accept (with or without modification), as an environmental assessment for a project or concept plan, an environmental impact statement obtained in accordance with requirements of the Director-General under Part 4 or under Division 4 of Part 5 of the Act with respect to any development or activity before it becomes a project to which Part 3A of the Act applies.

(3) The Director-General may accept, as a period of public availability of the environmental assessment for a project or concept plan (under section 75H (3) of the Act), a period of public exhibition of an environmental impact statement referred to in subclause (2) before the relevant development or activity becomes a project to which Part 3A of the Act applies. … 30 Clause 8J was amended by the Environmental Planning and Assessment Amendment (Major Projects - Transitional Provisions) Regulation 2005, published in the Gazette on 7 December 2005, but expressed to commence on the date of assent to the 2005 Amendment Act (that is, 16 June 2005). Nothing turns on the amendment in this matter (and cl 1(3) of Sch 6 to the EPA Act would have operated on the amendment to prevent its commencement prior to publication prejudicing the rights of any person other than the State or an authority of the State).

31 Division 2 of Pt 3A is headed "Environmental assessment and approval of projects". The key provision in Pt 3A is in Div 2, s 75D, which provides that: (1) A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part.

(2) The person is to comply with any conditions to which such an approval is subject.

32 Under s 75E(1), a proponent may apply for the approval of the Minister under Pt 3A to carry out a project. The application is to describe the project and contain any other matter required by the Director-General (s 75E(2)). The application is to be lodged with the Director-General (s 75E(3)). When an application is made for the Minister's approval for a project, the Director-General is to prepare environmental assessment requirements having regard to any relevant guidelines in respect of the project, and is to notify the proponent of the environmental assessment requirements (s 75F(2) and (3)). The Director-General may require the proponent to include in an environmental assessment a statement of the commitments the proponent is prepared to make for environmental management and mitigation measures on the site (s 75F(6)).

33 The proponent is to submit to the Director-General the environmental assessment required under Div 2 for approval to carry out the project (s 75H(1)). After the Director-General has accepted the environmental assessment, the Director-General must make the environmental assessment publicly available for at least 30 days (s 75H(3)). Any person may make a submission to the Director-General within that period concerning the matter, which the Director-General must then provide to the proponent, amongst others (s 75H(4) and (5)). Section 75H(6) says that: (6) The Director-General may require the proponent to submit to the Director-General: (a) a response to the issues raised in those submissions, and (b) a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and (c) any revised statement of commitments.

34 Section 75H(7) provides that: If the Director-General considers that significant changes are proposed to the nature of the project, the Director-General may require the proponent to make the preferred project report available to the public.

35 Section 75I provides as follows: (1) The Director-General is to give a report on a project to the Minister for the purposes of the Minister's consideration of the application for approval to carry out the project.

(2) The Director-General's report is to include: (a) a copy of the proponent's environmental assessment and any preferred project report, and (b) any advice provided by public authorities on the project, and (c) a copy of any report of a panel constituted under section 75G in respect of the project, and (d) a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and (e) except in the case of a critical infrastructure project - a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and (f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate.

36 Section 75J is as follows: (1) If:

(a) the proponent has duly applied to the Minister for approval under this Part to carry out a project, and (b) the environmental assessment requirements under this Division with respect to the project have been complied with, the Minister may approve or disapprove of the carrying out of the project. (2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:

(a) the Director-General's report on the project and the reports, advice and recommendations contained in the report, and (b) if the proponent is a public authority - any advice provided by the Minister having portfolio responsibility for the proponent, and (c) if the Minister has directed an inquiry be held in accordance with section 119 with respect to the project - any findings or recommendations of the Commission of Inquiry. (3) The Minister cannot approve of the carrying out of a project:

(a) that is not a critical infrastructure project, and (b) that would (but for this Part) be wholly prohibited under an environmental planning instrument by the operation of section 76B. (4) A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine.

37 Schedule 1 of the 2005 Amendment Act amended s 23 of the EPA Act. Section 23(1) provides that the Minister, corporation or Director-General may, by instrument in writing, under seal (in the case of the corporation), delegate any of the Minister's, the corporation's or the Director-General's functions conferred or imposed by or under the EPA Act or any other Act as are specified in the instrument to any officer of the Department (amongst others). The 2005 Amendment Act inserted subs (a1) into s 23(8) as follows: (8) Nothing in this section authorises the delegation of:

(a) the power of delegation conferred by this section, or (a1) the function of the Minister under Part 3A of determining whether to approve the carrying out of a project or the concept plan for a project, or (b) any function of the Minister conferred by section 80 (7), 117 or 118 or by section 130 (4).

38 Section 75K provides for appeals by a proponent who is dissatisfied with the Minister's determination if the project is not a critical infrastructure project, the proponent is not a public authority and if, but for Pt 3A, the project would have been development subject to Pt 4 of the EPA Act. Objectors are entitled to be heard in any such appeal as if they were a party (s 75K(3)). Section 75L provides for appeals by objectors in the circumstances specified (including that the project is not a critical infrastructure project and, but for Pt 3A, the project would have been designated development under Pt 4 of the EPA Act). An objector is identified in s 75L(2) as a person who has made a submission under s 75H by way of objection to an application for approval under Div 2 to carry out a project. These provisions reflect the observation in the Minister's second reading speech that appeal rights "will generally continue to apply as if the project was being assessed under either part 4 or part 5 as is relevant" (Hansard, 27 May 2005, p 16322). That is, there were no merit appeal rights under Pt 5, and objector merit appeals under Pt 4 were confined to designated development.

39 Division 3 of Pt 3A regulates concept plans for certain projects and is not relevant to this matter. Div 4 is headed "Application of other provisions of this and other Acts". Section 75R(1) states that Pts 4 and Part 5 do not, except as provided by Pt 3A, apply to or in respect of an approved project (including the declaration of the project as a project to which Pt 3A applies and any approval or other requirement under Pt 3A for the project). An "approved project" is a project to the extent that it is approved by the Minister under Pt 3A, but does not include a project for which only approval for a concept plan has been given (s 75A). Under s 75R(3), environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.

40 Section 75T regulates third party appeals for critical infrastructure projects (and thus does not apply to the approval challenged in these proceedings). It provides that: (1) This section applies to:

(a) proceedings in the Court (and orders made by the Court) under Division 3 of Part 6, and (b) proceedings in the Court (and orders made by the Court) under section 252 or 253 of the Protection of the Environment Operations Act 1997, and (c) proceedings in the Court (and orders made by the Court) under section 20(2) of the Land and Environment Court Act 1979. (2) Proceedings in the Court (and orders made by the Court) cannot be taken or made, except on application made or approved by the Minister:

(a) to remedy or restrain a breach of this Act (within the meaning of Division 3 of Part 6) arising under this Part in respect of a critical infrastructure project, including the declaration of the project as a project (and a critical infrastructure project) to which this Part applies and any approval or other requirement under this Part for the project, or (b) to enforce any conditions of an approval under this Part for a critical infrastructure project, or (c) to remedy or restrain a breach of this or any other Act arising in respect of the giving of an authorisation of a kind referred to in section 75V(1) for a critical infrastructure project (or in respect of the conditions of such an authorisation).

41 Div 3 of Pt 6 of the EPA Act, as referred to in s 75T, contains s 122 (the extended definition of "breach"), s 123 (the open standing provision to restrain or remedy breaches of the EPA Act) and s 124 (the provision that the Court may make such order as it thinks fit to remedy or restrain a breach which it is satisfied has occurred).

42 Section 75U(1) provides that the authorisations which would otherwise be required under nominated statutes are not required for an approved project and that, accordingly, the provisions of any Act that prohibit an activity without such an authority do not apply. Section 75V provides that any authorisation required under other nominated Acts cannot be refused if necessary for carrying out an approved project and is to be substantially consistent with the approval under Pt 3A. This reflects part of the second reading speech in which the Minister said that "(n)ew part 3A provides for integrated approvals that will consolidate 15 approvals under nine Acts into a single assessment process and approval given under the Environmental Planning and Assessment Act." (Hansard, 27 May 2005, p 16322).

43 Division 5 of Pt 3A is headed "Miscellaneous". Amongst other sections, it contains s 75X(2) to (5) as follows: (1) … (2) The following documents under this Part in relation to a project are to be made publicly available by the Director-General:

(a) applications to carry out projects, (b) environmental assessment requirements for a project determined by the Director-General or the Minister, (c) environmental assessment reports of the Director-General to the Minister, (d) approvals to carry out projects given by the Minister, (e) concept plans submitted for the Minister's approval (and approvals of concept plans), (f) requests for modifications of approvals given by the Minister and any modifications made by the Minister. (3) The Minister may, but is not required to, give reasons to the proponent for: (a) any disapproval, or conditions or modifications, of a project, or (b) any disapproval, or modifications of, a concept plan for a project, or (c) any conditions of approval of a modification of the approval of a project. (4) The validity of an approval or other decision under this Part cannot be questioned in any legal proceedings in which the decision may be challenged except those commenced in the Court within 3 months after public notice of the decision was given.

(5) The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project.

44 Section 75X(4) reflects the terms of s 101, the subject of consideration by the Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707 and Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207. The class 4 application was filed on 22 March 2006, within the three month period specified in s 75X(4) (as public notice of the decision was given on 23 December 2005). Section 75X(5) reflects the terms of s 102, considered by Lloyd J in Association for Berowra Creek Inc v Minister for Planning and Another (2003) 124 LGERA 99.

45 Section 75Z provides for the making of regulations. Section 75ZA provides that development may be declared to be a project to which Pt 3A applies even if action has been taken under Pts 4 or 5 before the declaration (whether before or after the commencement of Pt 3A) in which event, any Pt 4 development consent or Pt 5 approval ceases to have effect but is revived if the declaration is revoked without approval under Pt 3A having been granted. If approval is granted under Pt 3A and the declaration then revoked, the approval is taken to be a development consent granted under Pt 4.

46 Section 153(1)(c) of the EPA Act, also introduced by the 2005 Amendment Act (Sch 5 which commenced at the same time as Sch 1), provides as follows: (1) Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served: (a) … (b) … (c) by sending it by facsimile or electronic transmission (including for example the Internet) to the person in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person.

47 Section 157 contains the general regulation making power.

48 The 2005 Amendment Regulation also contained provisions relating to the Director-General's report in cl 8B as follows: The Director-General's report under section 75I of the Act in relation to a project is to include the following matters (to the extent that those matters are not otherwise included in that report in accordance with the requirements of that section): (a) an assessment of the environmental impact of the project, (b) any aspect of the public interest that the Director-General considers relevant to the project, (c) the suitability of the site for the project, (d) copies of submissions received by the Director-General in connection with public consultation under section 75H or a summary of the issues raised in those submissions.

49 Clause 8G(1) relates to the duty of the Director-General under s 75X(2) to make specified documents relating to a project publicly available. Clause 8G otherwise provides that: (1) …

(2) The documents are to be made available on the Department's website and in such other locations as the Director-General determines.

(4) In addition to the documents referred to in section 75X (2) of the Act, the Director-General is to include on the Department's website and in such other locations as the Director-General determines the following documents: (a) the declaration of development as a project to which Part 3A of the Act applies or its declaration as a critical infrastructure project, (b) guidelines published under section 75F or 75H of the Act, (c) any environmental assessment in relation to a project that has been placed on public exhibition under section 75H of the Act, (d) responses to submissions, preferred project reports and other material in relation to a project provided to the Director-General by the proponent after the end of the public consultation period (whether under section 75H (6) of the Act or otherwise), (e) reports of panels under section 75G of the Act or of inquiries under section 119 of the Act in relation to a project, (f) any reasons given to the proponent by the Minister as referred to in section 75X (3) of the Act.

(5) A document may be made available on the Department's website by providing an electronic link to the document on another website.

50 On 6 October 2005, the RTA sent a letter to the Director-General. The RTA's letter observed that the environmental impact assessment for the Tugun Bypass was "significantly progressed" including issue of the Director-General's requirements, preparation of the environmental impact statement and species impact statement, public exhibition of the environmental impact statement and species impact statement and receipt of representations (as well as the report on the representations being well advanced). The letter continued: Part 3A of the Act came into operation on 1 August 2005. At that time, the assessment of the Tugun Bypass project had not advanced to the stage of concurrence being sought from the Director-General of the Department of Environment and Conservation or an application for approval being submitted under Division 4, Part 5 of the EP&A Act.

Accordingly, it is the RTA's understanding that certain additional steps are now required to progress this project. Therefore, the RTA, by this letter:

1. applies under section 75E of the EP&A Act for approval from the Minister for Planning for the carrying out of the Tugun Bypass within NSW.

2. requests that you: · adopt the environmental assessment requirements issued for this project on 22 September 2004 · accept the EIS and SIS published in respect of this project in December 2004 · accept the period of public exhibition of the EIS and SIS in respect of this project between 13 December 2004 and 15 March 2005,

in accordance with Clause 8J of the Environmental Planning and Assessment Regulation.

3. seeks your agreement to the RTA preparing a Submissions Report, including a statement of commitments and incorporating as necessary a Preferred Project Report, in satisfaction of the requirements of Section 75H(6) of the EP&A Act.

51 On 13 October 2005, the RTA sent a further letter to the Director-General enclosing a copy of the "Submissions Report (including a Statement of Commitments for you [sic] information and assistance in the preparation of your report to the Minister for Planning".

52 The Director-General's delegate responded to the RTA's letter on 20 October 2005. The Director-General's letter, in part, stated: The Roads and Traffic Authority has decided that the project requires an environmental impact statement to be obtained within the meaning of Part 5 of the EP&A Act and, by order of the Minister, is now subject to Part 3A. The Minister is the relevant approval authority.

Director-General's requirements (DGRs) for an Environmental Impact Statement (now an "Environmental Assessment" under Part 3A) were previously issued. Pursuant to Clause 8J of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Regulation 2005, the Director-General adopts the previously issued DGRs as environmental assessment requirements and accepts the EIS and the public exhibition period for the EIS for the purposes of Part 3A for the Tugun Bypass. This is provided that the proposal remains essentially the same as at the time the DGRs were issued.

Please note that Part 3A enables the Director General to require a Statement of Commitments (for environmental management and mitigation measure) to be included in the Environmental Assessment. It is agreed that the RTA should prepare a Submissions Report for the project, including a Statement of Commitments. The need for a Preferred Project Report (PPR) will be considered following the Department's review of the Submissions Report.

53 The primary issue arising under the applicant's first and second claims is whether the reference to a "statement of commitments" in this letter involved the Director-General exercising a power under s 75F(6). If the former, then the applicant submitted that the Director-General was bound to make the "statement of commitments" lodged by the RTA publicly available under s 75H(3). If, as the respondents submitted, the Director-General was accepting an offer referable to s 75H(6)(c) then the respondents say that it is apparent from the provisions of Pt 3A (particularly s 75H(3), (6) and (7)) that the Director-General was not subject to an obligation to make the "statement of commitments" publicly available.

54 The letter said that the "statement of commitments" was to be included in the "submissions report". The "submissions report" is agreed by the parties to be a reference to s 75H(6)(a) of the 2005 Amendment Act. The "submissions report" is one of the documents the applicant contended in its third, fourth and sixth claims that the Director-General was required to include in his report to the Minister and physically deliver to the Minister, and that the Minister was required to consider. The letter also referred to the environmental impact statement (which, for reasons given below, I find should be understood as a reference to the environmental impact statement and species impact statement). The environmental impact statement and species impact statement (being the "proponent's environmental assessment") are also documents that the applicant contended in its third, fourth and sixth claims the Director-General was required to include in his report to the Minister and physically deliver to the Minister, and that the Minister was required to consider.

55 On 24 October 2005, the Director, Major Infrastructure Assessments of the Department of Planning forwarded letters to various government agencies (the Department of Environment and Heritage (Cth), the Department of Primary Industries (NSW), the Department of Natural Resources (NSW) and the Department of Environment and Conservation (NSW)). The letters noted that the environmental impact statement requirements had been accredited as the proponent's environmental assessment requirements under s 75F(3), in accordance with cl 8J of the 2005 Amendment Regulation. Further, that the RTA had prepared a submissions report which the RTA would forward to the agency. The letter continued: Please note that the assessment is being undertaken as a transitional project. For this transitional project, we would appreciate your advice on the Submissions Report and particularly the proposed Statement of Commitments. Of particular relevance are issues within your relevant fields of expertise, such as threatened species, cultural heritage and groundwater. Any additional Conditions of Approval or post-approval role that you feel are necessary should be provided with a brief justification. … In framing your response, please be aware that the Proponent's Statement of Commitments will form an integral part of any approval.

56 The document styled "submissions report" is two volumes. As noted, the RTA lodged the document on 13 October 2005. Volume 1 is the main volume. It included a section (section 4) setting out a description of the submissions received, and a response to each issue raised in the submissions. Section 7 of volume 1 included a table. Table 7.1 set out the measures as published in the environmental impact statement and species impact statement and not modified (as per table 18.1 in main volume 1 of the environmental impact statement, but for the modified items). Table 7.2 set out additional measures arising from discussions with various Commonwealth and State government agencies and modified versions of measures originally published in the environmental impact statement and species impact statement. Table 7.3 was described as measures previously published but withdrawn or satisfied (although that table seems to be missing). Section 7.3 specified a number of standard conditions from the Department of Planning's database, which the RTA was willing to accept. Page 7-1 explained that tables 7.1 and 7.2, and section 7.3 (but not table 7.3), comprised the RTA's statement of commitments.

57 Volume 2 (a large volume of more than 500 pages) contained the appendices. There were 16 appendices dealing with various topics. The appendices comprised: - Appendix A - Detailed Breakdown of Submissions, Appendix B - Boyd Street Overpass Preliminary Overview of Environmental Issues, Appendix C - Results of a Preliminary Cultural Heritage Survey of the Proposed Tugun Bypass, Appendix D - Tugun Bypass Indigenous Cultural Heritage Visit, Appendix E - Proposed Tugun Bypass - Review of Wallum Sedge Frog and the Green-thighed Frog, Appendix F - Eight-part test of significance for Durringtonia paludosa, Appendix G - Vegetation Survey of Proposed Compensatory Habitat Blocks A and E, Tweeds Heads West, NSW for the Tugun Bypass Project, Appendix H - Tugun Bypass, Stewart Road to Kennedy Drive - Compensatory Habitat, Appendix I - Systematic Survey for Coastal Planigale (Planigale maculata) on Crown Land and Adjacent GCAL Controlled Lands, Appendix J - Fauna Survey of Lands Identified for Compensatory Habitat for the Proposed Tugun Bypass Project, Appendix K - Stage I Assessment of the Adequacy of the Proposed Compensatory Habitat Package for the Tugun Bypass, Appendix L - Tugun Bypass Review of Existing and Proposed Groundwater Investigations, Appendix M - Responses to Issues Raised by DIPNR, Appendix N - Eight-part test of significance for Randia moorei, Appendix O - Potential for Walking Trail between Tugun Heights Conservation Park and Hidden Valley, Appendix P - Bird Management Plan.

58 Several of the government agencies responded to the correspondence from the Department. These are documents (being advice provided by public authorities on the project) that the applicant contended, in its third and fourth claims, the Director-General was required to include in his report to the Minister and physically deliver to the Minister, and that the Minister was required to consider. Around the same time, some members of the public wrote to the Minister identifying their concerns with the proposal and inadequacies they perceived in the environmental impact statement.

59 The RTA modified its statement of commitments on 16 December 2005, following a memorandum from a Department officer (Mr Brendon Baker) of 23 November 2005 and a meeting with Mr Baker on 29 November 2005.

60 Mr Brendon Baker gave evidence. Mr Baker is an ecologist, and was employed by the Department of Planning between 5 August 2002 and 3 March 2006.

61 On 31 October 2005, Mr Baker sent an email to Mr Gus Ortega, a person he described as responsible for managing the Department of Planning's website. There was no evidence in this matter about the nature of email communications, websites or the Internet. In Jones v Toben [2002] FCA 1150 at [64] and [65], Branson J held that s 144 of the Evidence Act 1995 rendered proof of the nature of the Internet and World Wide Web unnecessary, as these matters were common knowledge generally. I agree and adopt her Honour's descriptions of both. That is, the "internet is a means of global communication that relies on a universal set of protocols or standards for the transmission of information" (citing Canadian Human Rights Tribunal in Citron v Zündel (No 4) (2002) 41 CHRR D/274 (unreported, CHRT, Chairperson C Pensa, Member R Devins, 18 January 2002) at [60]), and the World Wide Web "is a specific application that uses the internet to send and display data, including text, graphics, audio and video. There are two active components on the web: a server that stores and transmits information, and a client or browser that requests, receives and displays the information obtained from the server. A "web site" is a collection of computer files that are coded in a specific way … to allow information to be sent on request to a browser. The files are then displayed in a way consistent with the instructions provided by the creator of the web site. Every web site has a unique uniform resource locator (URL), akin to their internet address. Once connected to the internet, the URL … is necessary to gain access to a given web site".

62 Mr Baker's email asked Mr Ortega to add the details for the Tugun Bypass project to the "admin tracking database and the Major Projects Register on the web". Mr Baker said he delivered a compact disc to Mr Ortega for that purpose, which contained the complete environmental impact statement, species impact statement and addendum, and submissions report (including all appendices). Mr Ortega responded by email on the same day saying "All up at: http://www.planning.nsw.gov.au/asp/register.asp". Mr Baker checked the Department's website and observed that the complete environmental impact statement, species impact statement and addendum and submissions report with all appendices had been uploaded, other than appendices B, C, K, M and L to the submissions report which were too large to upload. A further document was placed on the Department's website on the major projects register page relating to the Tugun Bypass, (I infer) following consultation between Mr Baker and Mr Ortega. That document listed the documents available on the website relating to the Tugun Bypass and, with respect to the submissions report, said "for Appendices B, C, K and M please contact Brendon Baker" and gave his phone number. Mr Baker said that he saw such a document when he checked the website (although I infer that he in fact saw an earlier version of the document in evidence). The omission of reference to appendix L appears to be an oversight as it also was not one of the appendices said to be available electronically.

63 Mr Baker prepared a briefing note for the Minister on the Tugun Bypass and a document headed "Major Project Assessment: Tugun Bypass: Director-General's environmental assessment report, section 75I of the Environmental Planning and Assessment Act 1979" dated December 2005.

64 Mr Baker said that before he prepared these documents he read the whole of the environmental impact statement, the species impact statement and addendum, all of the objections and submissions received in response to the exhibition and notification of the proposal, the whole of the submissions report and appendices, and the other submissions received by the RTA. Mr Baker met twice with the Director-General in the week leading up to 20 December 2005 for the purpose of briefing him on the preparation of the two documents. On 20 December 2005, Mr Baker was requested by either the Director-General or his immediate supervisor to take Departmental file S99/01179 - 6 to Governor Macquarie Tower, within which the Minister's office was located. Mr Baker took that file, which included document Y05/4435 (the briefing note and Director-General's report) to the foyer of Governor Macquarie Tower where he met the Director-General. Together, they looked at certain documents including the briefing note and Appendix A to the Director-General's report. Mr Baker saw the Director-General sign the briefing paper and the Director-General's report. He then saw the Director-General go into one of the lifts, which led to the Minister's office.

65 A document headed "Ministerial correspondence tracking system" shows that file S99/01179 - 6 was moved to the Minister's office on 20 December 2005. The file is in evidence. It contains the briefing note and the Director-General's report. The briefing note bears the signature of "Sam Haddad Director-General" above the date 20 December 2005. The foreword to the Director-General's report also bears the signature of "Sam Haddad Director-General of the Department of Planning " above the date 20 December 2005.

66 Appendix A to the Director-General's report was a table as follows: APPENDIX A: SECTION 75l CONSIDERATIONS

Section 75l of the EP&A Act identifies items that the Director-General's environmental assessment report is to include.

(a) a copy of the proponent's environmental assessment A copy of the proponent's environmental assessment can be viewed at www.mainroads.qld.gov.au/ content/Tugun Bypass Project. A link is provided on the Department's web site (www.planning.nsw.gov.au). (b) any advice provided by public authorities on the project. Advice was received from DEC, DNR, DPI (Fisheries) and Department of Lands. Copies of this advice is provided A link is provided on the Department's web site (www.planning.nsw.gov.au). (c) a copy of any report of a panel constituted under section 75G in respect of the project. Not applicable. (d) a copy or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project. Not applicable. (e) except in the case of a critical infrastructure project - a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division. Not applicable. (f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate. This Report.

67 Mr Baker did not take the copy of the environmental impact statement or submissions report in his custody to the Director-General on 20 December 2005. He did not receive a telephone call from any person (including the Minister) to access appendices B, C, K, M and L to the submissions report. I accept Mr Baker's evidence, as summarised above.

68 The Minister approved the carrying out of the project on 21 December 2005. In so doing, the Minister signed and dated the briefing note and the instrument of approval. The instrument of approval was attached to the Director-General's report and tabbed as annexure "H" in the file delivered to the Minister. The instrument of approval stated that: I, the Minister for Planning approve under s.75J of the Environmental Planning and Assessment Act 1979 the Project referred to in Schedule 1, subject to the conditions in Schedule 2.

69 Schedule 1 of the instrument of approval was in the following terms: SCHEDULE 1: DESCRIPTION OF TUGUN BYPASS

The Project is the TUGUN BYPASS as described in the: 1. environmental impact statement (EIS) for the Tugun Bypass Stewart Road to Kennedy Drive prepared by Queensland Department Of Main Roads and the NSW Roads And Traffic Authority, dated December 2004; as modified by the 2. Submissions Report for the Tugun Bypass Stewart Road to Kennedy Drive prepared by the Queensland Department of Main Roads and the NSW Roads and Traffic Authority dated October 2005; and 3. revised Statement of Commitments in Attachment 1 to Schedule 2.

70 Schedule 2 of the instrument of approval included the conditions of approval and the revised statement of commitments.

71 The applicant's challenge to the validity of cl 8J(3) of the 2005 Amendment Regulation was the subject of the seventh claim. I will deal with it separately. Accordingly, the first claim was that the proponent's environmental assessment was not exhibited as required by s 75H(3), in that the Director-General required the RTA to include in the environmental assessment a statement of commitments under s 75F(6), and the statement of commitments was never exhibited. This constituted a breach of a requirement nominated as mandatory by s 75X(5). The second claim was that the Director-General making the environmental assessment publicly available in accordance with s 75H(3) was an "environmental assessment requirement[s] under this Division…", as referred to in s 75J(1)(b), which had not "been complied with". The applicant submitted that, properly construed, s 75J(1)(a) and (b) create jurisdictional facts and thus, relevantly, the "environmental assessment requirements under" Div 2 of Pt 3A (objectively) must be satisfied. As they were not satisfied, the Minister approved the carrying out of the project when a pre-condition to the power of approval specified in s 75J(1)(b) had not been met.

72 The respondents submitted that the Director-General did not require the RTA to include in the environmental assessment a statement of commitments within the meaning of s75F(6), but accepted a revised statement of commitments under s 75H(6)(c). As such, there was no obligation on the Director-General to make that statement of commitments publicly available under s 75H(3). In the statutory scheme, a revised statement of commitments can only be prepared after exhibition and, as s 75H(7) discloses, there was no obligation on the Director-General to make any such document publicly available. The respondents also submitted that the reference to "environmental assessment requirements under this Division" in s 75(1)(b) is limited to requirements specified in s 75F, and does not extend to any other requirement of the Division.

73 The first and second claims depend on the characterisation of the function exercised by the Director-General through his delegate (s 23(1)(a) of the EPA Act) on 20 October 2005.

74 The applicant submitted that the only function the Director-General could have exercised was that under s 75F(6). No statement of commitments had been lodged. Thus, the Director-General could not have been exercising a function under s 75H(6)(c) (as the respondents claim), as there was no document to revise. To support this contention, the applicant pointed to pp 18 and 44 of the Department's file (pp 3 and 30 of the Director-General's report), which referred to a statement of commitments having been prepared in accordance with s 75F(6).

75 The respondents submitted that the context of the 20 October 2005 letter disclosed that the Director-General had not exercised a function under s 75F(6). In particular: - (i) the environmental impact statement had been prepared in accordance with, and exhibited under the EPA Act, prior to the 2005 Amendment Act commencing. At that time the Director-General did not have the power in s 75F(6), (ii) the 20 October 2005 letter responded to the RTA's 6 October 2005 letter. The RTA asked the Director-General to adopt the requirements issued on 22 September 2004 as the environmental assessment requirements for the project under Pt 3A, accept the environmental impact statement and species impact statement as the environmental assessment for the project under Pt 3A, and accept as a period of public availability under s 75H(3) the period of exhibition of the environmental impact statement under Pt 5 of the EPA Act. The RTA sought the Director-General's "agreement" to the RTA preparing a "submissions report" and including in that report a statement of commitments, said by the RTA to be "in satisfaction of the requirements of Section 75H(6) of the EP&A Act", and (iii) in that context, the Director-General's response that "[i]t is agreed that the RTA should prepare a Submissions Report for the project, including a Statement of Commitments", cannot be an exercise of power under s 75F(6) and is referable only to s 75H(6).

76 Sections 75F and 75H distinguish between the functions the Director-General is to and may perform. The Director-General is to prepare environmental assessment requirements (s 75F(2)), but may require a proponent to include in an environmental assessment a statement of commitments (s 75F(6)). The Director-General is to provide copies of submissions received by the Director-General to the proponent (s 75H(5)(a)), but may require the proponent to submit a response to those submissions, a preferred project report that outlines any proposed changes to the project to minimise its environmental impact and any revised statement of commitments (s 75H(6)).

77 The Director-General, by the letter dated 20 October 2005, adopted the 2 September 2004 requirements as the environmental assessment requirements under Pt 3A, and accepted the environmental impact statement as the Pt 3A environmental assessment and its period of public exhibition as the Pt 3A period of public availability. In this context, I am satisfied that the actions of the Director-General with respect to the statement of commitments were not an exercise of power under s 75F(6).

78 First, the Director-General could not have accepted an environmental impact statement as the environmental assessment under Pt 3A (which did not include a statement of commitments under s 75F(6)), and yet required the environmental assessment to include a statement of commitments under s 75F(6). The latter would necessarily have involved the Director-General in not accepting the environmental impact statement as the environmental assessment under Pt 3A but, rather, in requiring the RTA to submit a revised environmental assessment, including a statement of commitments, as contemplated by s 75H(2). The Director-General's acceptance of the environmental impact statement as the environmental assessment under Pt 3A (which did not include a statement of commitments under s 75F(6)) is not consistent with the Director-General having exercised power under s 75F(6).

79 Secondly, the Director-General could not have accepted the period of public exhibition of the environmental impact statement under Pt 5 as the period of public availability under s 75H(3), and yet required a statement of commitments under s 75F(6). The latter would necessarily have involved the Director-General in not accepting the period of public exhibition of the environmental impact statement under Pt 5 as the period of public availability under s 75H(3) but, rather, in requiring the RTA to revise the environmental impact statement to include a statement of commitments as referred to in s 75F(6) (see, again, the power available to the Director-General under s 75H(2)). The Director-General's acceptance of the public exhibition of environmental impact statement as the period of public availability of the environmental assessment is not consistent with the Director-General having exercised power under s 75F(6).

80 The applicant's submissions are also inconsistent with the terms of the 20 October 2005 letter. That letter, in terms, is a response to the RTA's 6 October 2005 letter. The Director-General, in referring to the "submissions report", must be understood as requiring the RTA to provide a response to the issues raised in submissions in accordance with s 75H(6)(a). It made sense for the Director-General to agree that the RTA should prepare a response to the issues raised in the submissions. Under Pt 5 of the EPA Act, s 113(2), the submissions had been lodged with the RTA rather than the Director-General, and the RTA had informed the Director-General that it was already well advanced in preparing a "representations report" (like "submissions report", a reference to a statutory obligation to address submissions in s 113(5) of the EPA Act).

81 Although the Director-General's response is framed as an agreement to an offer, those notions are inapt in this context. In saying that the RTA "should" prepare a submissions report for the project, including a statement of commitments, the Director-General is to be understood as exercising the power under s 75H(6)(a) to require the RTA to do so. The letter conveys the Director-General's requirement that the statement of commitments will be included in the submissions report. This statement in the letter follows immediately after the reference to the capacity to require such a statement to be included within a proponent's environmental assessment. The statutory scheme discloses that the proponent's environmental assessment (s 75F(5) and s 75H(1)) is different from any response to issues raised in submissions prepared by a proponent (s 75H(6)(a)). The former must be made publicly available (s 75H(3)), whereas the latter need not (see, for example, s 75H(7)). The Director-General's requirement that the statement of commitments be included within the submissions report (and not in the environmental assessment - even though the Director-General was plainly aware of that capacity) is inconsistent with the conclusion that the Director-General exercised power under s 75F(6).

82 The RTA submitted that table 18.1 in the environmental impact statement (required by cl 230 and items 4(d) and 5 of Sch 2 to the EPA Regulation) was a statement of mitigation measures (in substance the same as a statement of commitments), and that the Director-General required the submissions report to include a revised statement of commitments (s 75H(6)(c)), which was done. This may be so, but I prefer to give the Director-General's words of 20 October 2005 their ordinary meaning.

83 The shorthand references "submissions report" and "statement of commitments" risk distracting from the language of the statute. When regard is had to that language, it is apparent that requiring the RTA to prepare a "Submissions Report for the project, including a Statement of Commitments" is referable to s 75H(6)(a). A response to issues raised in submissions might well include a "statement of commitments" (for example, to address issues raised in those submissions). Hence, requiring a proponent to provide a response to issues raised in submissions is capable of extending to a response which includes specification of a proponent's commitments to address those issues - and that is what the Director-General required. Section 75H(6)(a) is itself a sufficient source of power for such a requirement. It does not matter whether there was or was not (in name or in substance) a "statement of commitments" in the environmental impact statement capable of revision under s 75H(6)(c). The Director-General's requirement, in terms, was to be addressed as part of the response to the issues raised in submissions, which was referable only to s 75H(6)(a). The requirement is incapable of reference to s 75F(6) in the circumstances I have described.

84 The subsequent references in the Director-General's report to s 75F(6) cannot alter what in fact occurred on 20 October 2005. I am satisfied that the Director-General did not require the RTA to include in its environmental assessment a statement of the commitments the RTA was prepared to make for environmental management and mitigation measures under s 75F(6).

85 Absent the Director-General having required the RTA to include in its environmental assessment a statement of the commitments the RTA was prepared to make for environmental management and mitigation measures under s 75F(6), there was no obligation on the Director-General to make that statement of commitments publicly available under s 75H(3). Hence, there was no breach of that provision. It follows that the first and second claims must fail (assuming the validity of cl 8J of the 2005 Amendment Regulation). Given this conclusion, the construction of s 75J(1)(b) and s 75X(5) does not arise under the first and second claims.

86 Determining: (i) what documents the Director-General was required to include in his report to the Minister, (ii) how those documents had to be given to the Minister, and (iii) what documents the Minister was obliged to consider, depends on the proper construction of ss 75I and 75J of Pt 3A, construed in context.

87 As noted, the three classes of documents the applicant submitted the Director-General had to include in the Director-General's report to the Minister were the proponent's environmental assessment (that is, the environmental impact statement and species impact statement which I am satisfied the Director-General accepted to be the environmental assessment under cl 8J(2) of the 2005 Amendment Regulation), the advice provided by public authorities on the project and the RTA's response to issues raised in the submissions. By "include", the applicant submitted that s 75I(2) meant that a hard copy of the proponent's environmental assessment and the RTA's response to issues raised in the submissions had to be included in the Director-General's report (but not necessarily the advices, because s 75I(2)((b) did not require a "copy" of the advices to be included). Further, that the Director-General was required physically to deliver the Director-General's report (including hard copies of the proponent's environmental assessment and the RTA's response to issues raised in the submissions) to the Minister in order to comply with s 75I(1) and (2).

88 The applicant submitted that the report did not include a copy of the environmental impact statement and species impact statement or the RTA's response to the submissions, but a mere reference to the Department of Planning's website where copies of those documents could be accessed. Such a reference was insufficient. The Minister admitted that he had not downloaded the documents on 20 or 21 December 2005, and ought to be inferred not to have done so at any earlier time. If documents can be given by electronic means, the applicant submitted that they are not given by uploading the documents on the web site, but by the Minister downloading the documents (see WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94 and Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575). In any event, the Department's website did not include appendices B, C, K, L and M to the submissions report because, as Mr Baker had said, those documents were too large to upload.

89 In respect of the sixth claim, the applicant submitted that the Minister had not been given (or read) the RTA's response to the submissions, even though the Director-General had considered the RTA's response appropriate to be included in the Director-General's report (see s 75I(2)(f)), and that the Director-General's report could not be properly understood absent the RTA's response to the submissions.

90 The applicant submitted further that the Minister was obliged to consider each of those documents, but did not do so (by reason of the fact that the Director-General had not given the documents to the Minister as required).

91 Accordingly, the applicant said that the Director-General had not given a report to the Minister within the meaning of s75I, and the Minister had not considered such a report as required by s 75J(2)(a). The consideration of those documents by officers of the Department could not constitute consideration by the Minister, having regard to the non-delegable nature of the Minister's obligation under s 23(8)(a1) (see Tickner and Others v Chapman and Others (1995) 57 FCR 451). The Minister also had not considered advice provided by the Minister having portfolio responsibility for the RTA as required by s 75J(2)(b). All of those matters constituted "environmental assessment requirements under this Division" within the meaning of s 75J(1)(b). Hence, the pre-conditions to the exercise of power by the Minister to approve the project had not been met.

92 The respondents submitted that: (1) The Director-General, by the website references, had included in the Director-General's report a copy of the environmental impact statement and species impact statement and the RTA's response to the submissions in the report. The context in this matter was different from that addressed by the High Court in both WACB v MIMIA and Dow Jones v Gutnick . See also s 153(1)(c) of the EPA Act and the Electronic Transactions Act 2000 (as well as s 122H of the EPA Act, cl 8G of the 2005 Amendment Regulation, and the definition of "document" in s 21 of the Interpretation Act 1987 and the Dictionary to the Evidence Act 1995). The website references were sufficient to include the documents in the report (by analogy, see Dainford Limited v Smith and Another (1984) 155 CLR 342 at 348 and Pine Rivers Shire Council v Dorfler (1993) 80 LGERA 315 at 320).

(2) In any event, nothing in s 75I required the RTA's response to the submissions (or "submissions report") to be included. The Director-General's report could also be understood without reference to the RTA's response to the submissions.

(3) Mr Baker had considered all of the documents referred to by the applicant and prepared the Director-General's report. The Director-General's report contained a summary of the issues to which those documents gave rise. In Tickner v Chapman , two members of the Full Federal Court had expressly contemplated that the Minister could rely on the assistance of, and a summary by, Departmental officers despite the non-delegable nature of the function (see at 462-465 and 476-477). See also FAI Insurances Limited v The Honourable Sir Henry Arthur Winneke and Others (1982) 151 CLR 342 at 416-417 per Brennan J, Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 65-66 per Brennan J, Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381 at [211] per Mason P, and Bushell and Another v Secretary of State for the Environment [1981] AC 75 at 95 per Lord Diplock.

93 In response to my request for further submissions on three aspects of this issue (the construction of s 75J(2)(a) and the significance, if any, of the presence in file S99/1179-6 of the environmental impact statement summary brochure and an extract from the environmental impact statement), the respondents submitted that: (1) The distinction drawn in s 75J(2)(a) between the Director-General's report on the project and the reports, advices and recommendations contained in the report had to be given meaning. The meaning which best accorded with the overall scheme and context of the legislation was that the Minister was not bound to consider the proponent's environmental assessment, but only the Director-General's report, the advices provided by public authorities, and the recommendations contained in the Director-General's report (there being no preferred project report or report of any panel constituted under s 75G in respect of this project).

(2) In any event, the file, which the Director-General should be inferred to have physically given to the Minister on 20 December 2005, included an extract from the environmental impact statement that contained a thorough description of the project. The file also contained the summary brochure of the environmental impact statement, which should be inferred to have been prepared by the authors of that statement, and which was a reliable summary of the statement.

(3) In these circumstances, any obligation on the Minister to consider the proponent's environmental assessment was discharged (but there was no such obligation given the terms of s 75J(2)(a)).

94 The applicant submitted that: (1) Section 75J(2)(a) distinguishes between the Director-General's report and the reports, advice and recommendations in that report. The proponent's environmental assessment must be in writing, might comprise a number of different documents and is encompassed by the second reference to "report" in s 75J(2)(a).

(2) The proponent's environmental assessment is a fundamental document at the heart of the application, required to be included in the Director-General's report. This is particularly so given that s 75I(2)(f) discloses that the Director-General need not prepare any environmental assessment. The Minister ought not to be treated as incapable of independent thought or capacity to deal with a proponent's environmental assessment, voluminous or not. Moreover, if the Minister were not obliged to consider the proponent's environmental assessment it would be unfair to proponents, as their sole opportunity to influence the Minister by their own environmental assessment would be removed.

(3) The environmental impact statement summary brochure and extract from the environmental impact statement in the file were qualitatively and quantitatively insignificant, and there is no evidence that the Minister looked at those documents. The Minister should be inferred not to have done so.

95 It is axiomatic that the meaning of a provision must be determined in context, on the basis that the instrument is "intended to give effect to harmonious goals", and that the court must "strive to give meaning to every word of the provision" ( Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] to [71]. In No Dump Residents Association Inc v Collex Pty Limited [ 2006] NSWCA 94, Spigelman CJ (with whom Giles and Tobias JJA agreed) said at [25] that: Although I can detect no ambiguity in this respect, the contemporary approach to statutory interpretation requires the Court to take into account context in the first instance and not merely after some form of ambiguity has been detected. (See CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].)

96 The context of the 2005 Amendment Act is disclosed in the second reading speech, the explanatory note which accompanied the bill and the provisions of the Act. As discussed in [23] above, Pt 3A was directed at projects of State significance and major infrastructure projects. Pt 3A, as inserted into the EPA Act by the 2005 Amendment Act, is headed "Major infrastructure and other projects". One of the provisions of the 2005 Amendment Act repealed Div 4 of Pt 5 of the EPA Act, which regulated the carrying out of activities by proponents who were also the determining authority where the activity was likely to significantly effect the environment.

97 Mason P described Pt 5 of the EPA Act in the following terms in Transport Action Group Against Motorways Inc v Road and Traffic Authority and Another (1999) 46 NSWLR 598 at [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.

98 In Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381 at [211] Mason P made an observation to similar effect saying: I see nothing wrong in principle with an examiner and reporter, or even a decision-maker, assigning to an agent the task of recording, collating, organising and summarising a mass of submissions covering a range of discordant issues (see Tickner v Chapman (1995) 57 FCR 451 at 464, 476-477). Anyone familiar with controversial environmental impact studies would recognise this as a common method of handling material that would be lost or overlooked because of its sheer mass and complexity. Naturally there are submissions and submissions, and some will call for additional attention. But it is unrealistic and unhelpful to expect a single decision-maker or a small panel of decision-makers to wade through every submission in the first instance. It will always be open to those mounting administrative law challenges to argue that the substance or detail of particular submissions have not been considered or taken into account, but the onus of establishing such allegations will rest upon them.

99 Pt 3A was specifically directed at projects of significance to the State, particularly State infrastructure projects and major projects. Projects of this character, almost by definition, are complex, large and likely to generate a vast mass of material relating to environmental assessment. The notoriety of the "sheer mass and complexity" of environmental impact statements under Pt 5 (the functional equivalent of a proponent's environmental assessment under Pt 3A), the breadth of the definition of "environment" in s 4(1) of the EPA Act, the definition of the requirements able to be imposed by the Director-General in s 75F as "environmental assessment requirements", all point to a context in which Parliament would have expected a proponent's environmental assessment to comprise many volumes of material, much of which would be expert in character, and the relative significance of which would be likely to be difficult for the educated layperson accurately to assess absent expert assistance.

100 The summary of the environmental impact statement and species impact statement in [19] above bears out this expectation. On my estimate those documents contain about 3000 pages of text, figures, graphs, analytical reports and model inputs and outputs. The text, figures, graphs, analytical reports and model inputs and outputs, moreover, relate to or found many conclusions and opinions of an expert character. In that context, the applicant's submission that the Director-General was required to include hard copies of those documents in the Director-General's report and to deliver (physically) a hard copy of that report to the Minister, calls for close consideration. Similar issues arise with respect to the applicant's submission that the Minister was required personally to consider those documents. Contrary to the applicant's submission, this approach is not to treat the Minister as "incapable of independent thought". It is to recognise the context and operation of Pt 3A in a real and practical manner, made more (not less) important by the absence of any capacity for the Minister to delegate the Minister's function of determining whether or not to approve a Pt 3A project (s 23(8)(a1)).

101 Section 75I required the Director-General to "give" a report to the Minister and the report to "include" a "copy of the proponent's environmental assessment". As the applicant submitted, a primary meaning of "give" is to "deliver" or "hand over". A primary meaning of "include" is "contain" (Macquarie Dictionary, revised 3rd ed.). Moreover, these concepts might be contrasted with the obligation of the Director-General to make the environmental assessment "publicly available" in s 75H(3). Further, the reference to "copy" in s 75I(2)(a) (in contrast to subs (b) and (f) and the reference to "a copy of or reference to…" in subs (e)) suggests that a reproduction of the documents is to be contained in the report.

102 As the applicant also submitted, Pt 3A contains provisions which either remove the requirement for other authorisations to be obtained or compel those authorisations to be granted consistently with the Minister's approval (ss 75U and 75V). As such, the Minister's decision effectively replaces numerous decisions which otherwise would be required. Given the significance of the Minister's decision, as the applicant said, imposing onerous obligations of consideration on the Minister may not be unexpected. Similarly, the opportunities for review of the Minister's decisions (merit-based or judicial) might be perceived as confined (ss 75K, 75L, 75Q, 75T, 75X(4) and (5)).

103 While the above factors might support the applicant's claims in this respect, they cannot be considered in isolation. One important matter is that when Pt 3A was introduced by the 2005 Amendment Act, Sch 5 of that Act (item [18]) inserted subs (c) into s 153(1) enabling any document to be given to or served on any person by electronic transmission "(including for example the Internet)" in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person. Section 21 of the Interpretation Act 1987 itself defines "document" as any record of information, and includes, relevantly, anything from which sounds, images or writings can be reproduced with or without the aid of anything else. Accordingly, a "copy" of a "document" must include a soft or electronic copy. Moreover, the language of s 75I has its own "register", part of the context of which is set by s 153(1)(c) ( Maunsell v Olins [1975] AC 373 at 391) and part by the nature of the documents required to be included in the Director-General's report. That context is important, particularly as "give" is capable of meaning to "enable", to "set forth or show, present, offer" (Macquarie Dictionary, revised 3rd ed.) and to "provide", "present, offer, expose, hold out, show", "cause or allow to have" (The Concise Oxford Dictionary, 7th ed.). "Include" is capable of meaning, "embrace", to "comprehend", or to "place in" (Oxford English Dictionary Online), to "treat or regard as so comprised" (The Concise Oxford Dictionary, 7th ed.).

104 Moving for the moment to s 75J, the provision operates in the context of the principle that the factors a decision-maker is bound to consider are "determined by the statute conferring the discretion" ( Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 39 per Mason J). Where, as here, s 75J(2) states the considerations the Minister is to take into account, a question may arise as to "whether those enumerated factors are exhaustive or merely inclusive". A decision will only be able to be vitiated if the decision-maker failed to consider a matter which the decision-maker was bound to consider, and which was material. A decision will also be able to be vitiated if the decision-maker considered a matter which the decision-maker was bound not to consider - an irrelevant consideration ( Peko-Wallsend at 39 - 41). There are other considerations, which the decision-maker is neither bound to consider nor to disregard - these are matters where the decision-maker has been left with a discretion as to whether or not to consider the matter. Failing to consider a matter which the decision-maker was not bound to consider cannot vitiate a decision ( Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, (1987) Kevin R Whelpton & Associates (Aust) Pty Ltd and Another v Attorney-General (Cth) 14 FCR 293 at 300).

105 The applicant did not submit that the decision-maker was bound to consider the three classes of documents by reason of implication from the "subject-matter, scope and purpose of" the enactment ( Peko-Wallsend at 40). Rather, the applicant submitted that the terms of s 75J(2)(a), properly construed, made the three classes of documents matters which the Minister was bound to consider.

106 Three features of s 75J(2)(a) to (c) are immediately apparent. The first is that the words "proponent's environmental assessment" do not appear in s 75J(2)(a) to (c) (in contrast to s 75I(2)(a)). The second is that the list of nominated documents in s 75J(2)(a) to (c) is not the same as the list in s 75I(2)(a) to (f). The third is the distinction drawn between the Director-General's report and the documents or matters to be included in the Director-General's report in s 75I(1) and (2), and the Minister's consideration of the Director-General's report and of the "reports, advice and recommendations contained in the report" (s 75J(2)(a)). One feature of s 75I(1) and (2) is equally apparent. The words "response to the issues raised in … submissions" (s 75H(6)(a)) do not appear. They also do not appear in s 75J(2).

107 Against this background, what do ss 75I and 75J mean?

108 The applicant relied on WACB v Minister for Immigration and Multicultural And Indigenous Affairs (2004) 79 ALJR 94 and Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 in support of its submissions that: (i) s 75I required the Director-General to deliver (physically, as part of the Director-General's report), a hard copy of the proponent's environmental assessment to the Minister or, alternatively, (ii) the Minister was given such a document electronically only once it had been downloaded by or for the Minister (that is, accessed via the web browser on a computer compatible with the Department's web server).

109 The circumstances of WACB and Dow Jones are not analogous to this matter, particularly in the face of the amendment of s 153(1) of the EPA Act (the insertion of subs (c)). WACB concerned a statement relating to an oral decision of the Refugee Review Tribunal, the Tribunal's obligation to give the applicant a copy of that statement and the associated right of the applicant to apply for review 28 days after being notified of the decision. The High Court (Gleeson CJ, McHugh, Gummow and Heydon JJA) emphasised that the word "give" took its ordinary meaning, "understood in its context" and that, in "that setting", to give a document "ordinarily requires its physical delivery, not some act of constructive delivery of possession…" (at 101). Dow Jones concerned the tort of defamation, and the appropriate forum. The High Court (Gleeson CJ, McHugh, Gummow and Hayne JJA) held that harm to reputation occurred on the reader comprehending the publication, and involved a bilateral act, not merely the publisher making the publication available (at 600). For material on the World Wide Web, the reader completed the bilateral act by downloading the material in comprehensible form on a computer (at 607).

110 The context of Pt 3A of the EPA Act is not compatible with a requirement that the Director-General physically deliver any document to the Minister, let alone a class of document (a proponent's environmental assessment) equivalent to those notorious for bulk (environmental impact statements). The context supports the conclusion that the word "give" in s 75I(1) should be construed as "cause or allow to have" or "make available to" rather than "physically deliver". This construction is consistent with s 153(1)(c) which enables the Director-General to serve or give a document by "electronic transmission (including for example the Internet) in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person".

111 What purpose is served by requiring the Director-General physically to deliver a hard copy of the Director-General's report to the Minister if the Minister may be inferred to have indicated that electronic delivery will suffice? If the Minister considered it appropriate, I see no reason why the Director-General could not give the Director General's report to the Minister in accordance with s 153(1)(c) by attaching the report to an email to the Minister, or by attaching an electronic link in such an email to the report, or by placing the entire report on the Department's website for the Minister to access, and notifying the Minister to that effect. All of those mechanisms make the report available to the Minister, which I consider sufficient for the Director-General to "give" the report to the Minister in accordance with s 75F(1) when that section is construed in context. All (other than perhaps the last example) would also amount to "giving" a document within the Electronic Transactions Act 2000 (s 8 and the definitions of "consent" and "electronic communication" in s 5(1)).

112 If the Director-General's report can be given electronically by any of the methods I have described above, it suggests that the documents to be included in that report can be included by electronic link or, as here (and in accordance with my findings below), by reference in a hard copy report to a website where an electronic copy of the document is available, if that accords with arrangements the Minister indicated were appropriate.

113 The fact that s 153(1)(c) was introduced as part of the 2005 Amendment Act, and specifically notes the Internet as an example of electronic communication, is important to these conclusions. It is also relevant that the website references in the copy of the Director-General's report were to the Department's own website. I see no reason to construe s 75I as preventing the Director-General from using the available technology to make the documents available to the Minister, and requiring instead that the Director-General physically deliver them.

114 Moreover, I see no reason to require, as a component of a document being given to the Minister in accordance with s 75I by electronic means, that the Minister download the document or have it downloaded on the Minister's behalf. The fact of downloading a document (or not) may be relevant to determining whether the Minister considered a matter as required by s 75J, but in my view is not relevant to the Director-General having complied with the Director-General's obligations imposed by s 75I. For example, assume the Director-General delivered the Director-General's report to the Minister in an envelope. Would anyone suggest that there was a breach of s 75I(1) merely because the Minister had not opened the envelope? There may well be a breach of the Minister's consideration obligation in s 75J(2)(a), but I can see no basis for suggesting a breach by the Director-General of the Director-General's obligation in s 75I(1).

115 There is no practical difference between the example of the Director-General's report being delivered to the Minister in an envelope, and the Director-General's report being placed on the web site, and the Minister being informed to that effect. There is also no practical difference between the Director-General (somehow) attaching a nine volume proponent's environmental assessment to the Director-General's report and physically delivering that material in a box to the Minister (which the Minister may or may not open), and the proponent's environmental assessment being placed on the Department of Planning's website and the Minister being provided, in the Director-General's report (appendix A), with a specific reference to the terms of s 75I and, against the entry for the proponent's environmental assessment, a reference to a copy of that document on the Department of Planning's website (which the Minister may or may not download). The Director-Generals' report, in my view, thereby includes a copy of the proponent's environmental assessment in both cases (by physical proximity in the former, and by reference in the latter). In both examples, the Director-General's obligation under s 75I is discharged. Any obligation on the part of the Minister to consider the proponent's environmental assessment, then falls to be determined under s 75J(2)(a) to (c).

116 If (as the applicant submitted) the non-delegable nature of the Minister's function means that the Minister must personally consider the documents identified in s 75J(2)(a) to (c), do those provisions mean that the Minister is to consider the Director-General's report as per s 75I(1) and each and every document to be included therein as referred to in s 75I(2)?

117 The applicant's construction of s 75J(2)(a) presents a number of fundamental problems. (1) The distinctions apparent in s 75I(1) and (2) and s 75J(2)(a) must be given effect. If the s 75I(2) matters were intended to be treated as part of the Director-General's s 75I(1) report proper, then the words "and the reports, advice and recommendations contained in the report" are superfluous. If the words "and the reports, advice and recommendations contained in the report" were intended to extend the Minister's consideration obligation beyond the Director-General's report under s 75I(1) to the s 75I(2) matters, then the lack of correlation between those words and all aspects of s 75I(2) is apparent. The specificity of "reports" and "advice", in particular, are not apt to function as a global reference to all s 75I(2) matters. The absence of reference to "the proponent's environmental assessment" is inescapable.

(2) The applicant's submission that the absence of the word "report" from the description "proponent's environmental assessment" in s 75I(2)(a) merely recognises that the assessment may be in many documents, does not accord well with the specificity of that reference, or of the references in s 75J(2)(a), (b) or (c).

(3) The Minister will have the benefit of the Director-General's report under s 75I(1) (as to which, see below). The Minister also has available other options to obtain advice on the project, all from persons and bodies independent of the proponent (a panel under s 75G or a Commission of Inquiry as referred to in s 75J(2)(c)). As such, the applicant's construction does not present as one necessary or particularly apt to strengthen the "rigour, transparency and independence of the process of assessment" (see [23] above).

(4) In contrast, the applicant's construction (that the Minister was bound to consider the proponent's environmental assessment) would create a real risk that significant issues "would be lost or overlooked because of [the] sheer mass and complexity" of the proponent's environmental assessment ( Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381 at [211]).

(5) Given the likely mass and complexity of a proponent's environmental assessment, the applicant's construction would not facilitate the aim identified in the second reading speech of ensuring that infrastructure projects of significance to the State and major projects could be delivered "quickly and efficiently". Nor could it be said to facilitate "reducing time, cost and complexity in the assessment of" projects of State significance and major projects (see references at [23] above).

118 Two constructions of s 75J(2)(a) to (c) are apparent which do not present the problems of the applicant's construction, and which recognise the fact that "proponent's environmental assessment" is referred to in s 75I(2)(a), but not in s 75J(2)(a) to (c).

119 The first construction is that the words "and the reports, advice and recommendations contained in the report" are cross-references to certain parts only of the matters required to be included in the Director-General's report under s 75I(2) - namely, those matters which are described as "reports" and "advices". The reference to "recommendations" has an element of redundancy about it on any construction, but captures and emphasises the recommendations in the Director-General's report. That is, s 75J(2)(a) requires the Minister to consider the Director-General's report proper and recommendations therein (as per s 75I(1)), and the documents included within that report which are identified in s 75I(2) as "reports" and "advices". These are all matters the Minister is bound to consider. The "proponent's environmental assessment" is not identified as such a document. The Minister is to be given that assessment (in the sense I have described) and may choose to consider it, but is not obliged to do so. The proponent's environmental assessment is thus not a matter the Minister is bound to consider, but a matter the Minister may consider.

120 The second construction is that the reference to "the Director-General's report" and "the report" in s 75J(2)(a) means only the Director-General's report for the purposes of the Minister's consideration of the application for approval" as specified in s 75I(1). While that report is to include the matters in s 75I(2)(a) to (f), those included matters are not "contained in" the Director-General's report in the sense used in s 75J(2)(a). The different terminology ("to include" in s 75I(2) and "contained in" in s 75J(2)(a)) conveys a different meaning. The former extends to documents made available through the Director-General's report (by attachment, incorporation or, as I have found here, a combination of reference to the Department's website and uploading of the documents onto that website). The latter is confined to the things within the Director-General's report. On this basis, "the reports, advice and recommendations contained in the report" mean precisely that - the reports, advice and recommendations contained in the Director-General's report. That is, the Minister is not obliged to consider any of the matters in s 75I(2)(a) to (f) (but, of course, may choose to do so). Those matters need only be considered insofar as they are encapsulated in the text of the Director-General's report.

121 The primary difficulty with the second construction (and one which means that I do not ultimately adopt it) is that it requires the words "and the reports, advice and recommendations contained in the report", if they are to be given any work to do, to be read as restricting consideration to the contents of the Director-General's report under s 75I(1). That construction is awkward and unlikely. The construction also sits uneasily with the terms of s 75I(2)(d) and (e) where I would expect the "references" to those instruments could only be in the Director-General's report under s 75I(1)). Hence, the line between what it is to "include" a matter in a report and for a matter to be "contained in" a report tends to blur.

122 While the drafting of s 75J(2)(a) is infelicitous, a sensible purpose consistent with the scope, purposes and objects of Pt 3A is discernible in the distinctions drawn in ss 75I and 75J if the first construction is accepted. The Director-General's report is specifically for the purpose of the Minister's consideration of the application for approval of the project. The Director-General is subject to Ministerial control and direction other than in respect of the contents of any recommendation or report to the Minister (s 13(2)). The Director-General has important functions under the EPA Act, including advice to the Minister (for example, s 15). A preferred project report may be required by the Director-General and, if required, will outline any proposed changes to the project to minimise its environmental impact (s 75H(6)(b) and s 75I(2)(a)). Advice provided by public authorities will draw on their expertise (s 75I(2)(b)). A report of a panel will be a result of arrangements made by the Minister (s75G and s 75I(2)(c)). A mandatory (and personal) obligation on the Minister to consider those documents is unsurprising.

123 The proponent's environmental assessment, likely to be a voluminous mass of material, will have been considered by the Director-General (and in the advice provided by public authorities and, possibly, by a panel under s 75G). Otherwise, the provisions of any State environmental planning policy that substantially govern the carrying out of the project (s 75I(2)(d)) would be expected to be dealt with in the Director-General's report (particularly as only a reference to this is required to be included), as would the provisions of any environmental planning instrument (s 75I(2)(e)) to the same effect and that have been taken into consideration in the environmental assessment of the project (again, particularly as only a reference to this is required to be included).

124 The sequence of the provisions of Pt 3A also supports the first construction. The Director-General prepares and notifies the proponent of the environmental assessment requirements (s 75F). The proponent prepares the environmental assessment and submits it to the Director-General (s 75H(1)). The Director-General decides whether the proponent's environmental assessment is adequate for public exhibition (s 75H(2). The public make submissions with reference to the proponent's environmental assessment (s 75H(3) and (4)). The Minister may obtain a panel report (s 75G) or Commission of Inquiry report (s 75J(2)(c) and s 119). The Minister is to be given the Director-General's report on a project "for the purposes of the Minister's consideration of the application for approval to carry out the project" (s 75I(1)). The Minister is bound to consider the documents nominated in s 75J(2)(a) to (c). Those documents are the Director-General's report proper, any panel report, any preferred project report, the advice of public authorities, any advice of the proponent's portfolio Minister is the proponent is a public authority, and any Commission of Inquiry findings or recommendations. All of these documents would assess, amongst other things, the proponent's environmental assessment (other than the preferred project report, which would outline any amendments the proponent was prepared to make to the project if required by the Director-General (s 75H(6)(b)). The Minister is not bound to consider any other documents (such as the proponent's environmental assessment itself), but may do so.

125 Before addressing issues to which the first construction gives rise, I observe that the absence of a mandatory obligation on the Minister to consider a proponent's environmental assessment should not be perceived as a radical departure from the prior regime. A consent authority under Pt 4 is not subject to any such obligation under s 79C, even for designated development. Under the repealed Div 4 of Pt 5, the Minister was not subject to any such obligation (s 115A(3), s 115B(3), s 115BB(3)), but the Director-General was (s 115C(1) and (2)). The Pt 5 equivalent of a proponent's environment assessment (an environmental impact statement) was always characterised as a "means to a decision-making end" ( Prineas v Forestry Commission of New South Wales and Others (1984) 49 LGRA 402 at 417, Prineas v Forestry Commission of New South Wales and Others (1984) 53 LGRA 160 at 163). In the context of Pt 3A, the proponent's environmental assessment can perform that function absent a mandatory obligation on the Minister to consider that assessment. This is because the Director-General will decide whether that assessment is adequate for exhibition (s 75H(2) and make that assessment publicly available (s 75G(3)). Further, the Director-General is to give a report to the Minister for the purposes of the Minister's consideration of the application for approval to carry out the project (s 75I(1)) and the Minister may require a report from a panel or Commission of Inquiry.

126 I now turn to some issues to which the first construction gives rise.

127 First, s 75I(f)(2)(f), which suggests that the Director-General need not provide an environmental assessment. Was it the intention that the Director-General could simply bundle up all the documents referred to in s 75I(2) and present that to the Minister as the Director-General's report (which, if so, does not sit well with the first construction)?

128 Although s 75I(2)(f) refers to "any" environmental assessment undertaken by the Director-General", s 75I(1) requires the Director-General to give a report to the Minister "for the purposes of the Minister's consideration of the application for approval to carry out the project". Moreover, the Minister is required to consider that report and the reports, advice and recommendations contained in the report. The legislation thus assumes that the Director-General's report will have content separate from the reports, advice and recommendations contained in the report. The content is identified by s 75I(1) as "for the purposes of the Minister's consideration of application for approval". While it might be difficult to imagine what such a report might contain other than an environmental assessment of the project (which is precisely what occurred in this case - see appendix A to the Director-General's report and the reference to "this report" next to item (f)), once it is accepted that the Director-General's report must have content for the purposes of the Minister's consideration of an application for approval, the spectre raised by the applicant of the Minister being authorised to make a decision absent consideration of any environmental assessment is removed.

129 Secondly, what of the applicant's submission that this construction means that the Minister will be "deprived of the fundamental document at the heart of the application". An answer is that the Minister is not "deprived" of the proponent's environmental assessment, as it is required to be included in the Director-General's report and could not be irrelevant to the Minister's determination. Nor do I see anything peculiar in a scheme that requires a document to be made available to the Minister, but does not require the Minister to consider it. In fact, given the observations above about proponents' environmental assessments and the other information the Minister will and can have available for the purpose of deciding whether to approve an application, leaving consideration of proponents' environmental assessments to the Minister's discretion is capable of being characterised as consistent with the underlying scope, purpose and objects of Pt 3A (see at [23] above). Another answer is that, as I have observed above, the Minister will have available other information, prepared by disinterested persons, who have had the benefit of the proponent's environmental assessment and all of the submissions to formulate their opinions- namely, the Director-General's report under s 75I(1) and, if the Minister wishes, a panel report under s 75G, as well as a Commission of Inquiry report as referred to in s 75J(2)(c).

130 The latter example warrants further comment. Commissions of Inquiry (ss 119 to 120A) are not subject to Ministerial control or direction (s 119(5)), hold their inquiries in public, are entitled to take evidence on oath and may summon a person to appear and give evidence or produce documents (s 120). Once such an inquiry has provided its findings and recommendations to the Minister (s 119(6)), which are generally to be made public (s 119(6) and (7)), it is difficult to see what additional purpose would be served by requiring the Minister to consider the proponent's environmental assessment. These observations apply also to the panel report and the Director-General's report (the last of which is not optional, but must be provided).

131 Thirdly, what about unfairness to proponents in not being able to put their "case" before the Minister? I am unable to see unfairness. The proponent's environmental assessment will be made available to the Minister. The Minister can decide whether or not to read the whole or any part of that assessment, having regard to the matters the Minister is to consider as specified in s 75J(2)(a) to (c). The very notion of the proponent's "case", moreover, suggests some decision-making other than that reflected in Pt 3A.

132 Fourthly, why require the Minister to consider a preferred project report and not the proponent's environmental assessment? A preferred project report is an outline of any changes to the project to minimise its environmental impact. Such a report is only provided if required by the Director-General and not as of course. Moreover, its content is limited to the changes a proponent has been willing to make after submissions have been received. All of those factors are capable of explaining a scheme in which the Minister is to consider any preferred project report, but may consider the proponent's environmental assessment.

133 Finally, what of ss 75U and 75V which make the Minister's decision to approve a project particularly significant? Those provisions are plainly modelled on the integrated development provisions of Pt 4 of the EPA Act (Div 5 of Pt 4) which are to the same general effect. The significance of the Minister's Pt 3A decision (which I accept) cannot warrant departing from a construction of s 75J(2)(a) which accords with the ordinary meaning of the words in context.

134 For these reasons, I construe s 75J(2)(a) as meaning that the Minister was bound to consider the Director-General's report proper under s 75I(1), any preferred project report and any report of a panel under s 75I(2)(a) and (c), and any advices from public authorities under s 75I(2)(b). I do not construe s 75J(2)(a) as meaning that the Minister was bound to consider either a proponent's environmental assessment or response to issues raised in submissions. I now address the applicant's specific claims.

135 The applicant claimed breach of s 75J(2)(b) (the Minister's obligation to consider any advice provided by the Minister having portfolio responsibility for the proponent, if the proponent is a public authority).

136 There is no evidence from which I infer that the Minister having portfolio responsibility for the RTA provided any advice about the project. Appendix A to the Director-General's report referred to advice provided by four public authorities, which did not include the Minister with portfolio responsibility for the RTA. There is no reference to any such advice in the Director-General's report. Nor does any such advice appear on file S99/01179 - 6.

137 I am satisfied that there was no advice provided by the Minister having portfolio responsibility for the RTA. Hence, there was no obligation on the Minister under s 75J(2)(b).

138 The applicant claimed breach of s 75J(2)(a), insofar as it required the Minister to consider certain advice provided by public authorities on the project. For the reasons given above, I accept that the Minister was bound by s 75J(2)(a) to consider advice provided by public authorities on the project. I construe this as meaning the "advice" extant at the date of the decision-maker's decision, and not earlier advice which may have been resolved through ongoing consultations.

139 I observed above that I accepted Mr Baker's evidence, and referred to the Ministerial correspondence tracking system document showing that file S99/01179 - 6 was moved to the Minister's office on 20 December 2005. The applicant acknowledged that a full stop should be read into the table at appendix A item (b) of the report (so that item (b) at p 50 of the file and p 37 of the report would read as "[c]opies of this advice is provided. A link is provided on the Department's web site (www.planning.nsw.gov.au)." The applicant also acknowledged that such advices might be given orally (in contrast to the proponent's environmental assessment, where a "copy" was required to be physically given to the Minister).

140 I am satisfied that the Director-General delivered (physically) file S99/01179-6 to the Minister on 20 December 2005. I am satisfied that the file at that time contained the documents which appear in the file as tendered, other than perhaps the yellow cover sheet. Hence, the file contained copies of the Director-General's report and the written advices provided by public authorities.

141 The applicant, in its points of claim at [35], identified the advices on which it relied as the advices from the Department of Primary Industries, Department of Lands and Department of Environment and Conservation (although one advice so identified was from the Department of Natural Resources, not the Department of Environment and Conservation). File S99/01179 - 6 contained these advices (the original letters are at pp 441, 436-439, 429-435, and 425-428). The Director-General's report was covered by a briefing note which, amongst other things, recommended that the Minister consider the findings and recommendations in the Director-General's report (which included appendix A, identifying that copies of the advices were provided). Moreover, the advices were referred to in the report (for example, file pp 19, 32, 36, 42, 44, and 49). The Minister signed and dated both the briefing note and the instrument of approval, which was annexed to the Director-General's report.

142 In circumstances where the Minister had the file containing the Director-General's report and that report referred to the advices being provided (as they were, in the same file), I am satisfied that the Director-General discharged the obligations under ss 75I(1) and 75I(2)(b) of the 2005 Amendment Act.

143 With respect to the Minister's obligation to consider the advices, the observations of Moffitt P in Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319 at 345 are applicable (although the Minister is a unitary and not a collegiate decision maker). The applicant bears the onus of establishing the Minister's breach of the consideration obligation. That onus must be discharged "in accordance with proper legal requirements and by inference not suspicion". Such an inference should be drawn only "after anxious consideration, but when the inference is available and ought to be drawn, the court should…not hesitate to give effect to the inference it has drawn".

144 I do not accept the applicant's submission that I ought to infer that the Minister did not look at the file because the Director-General was not called to give evidence about what happened in the Minister's office on 20 December 2005, and the briefing note did not direct the Minister's attention to the file. It is not apparent to me what evidence the Director-General could have been expected to give in circumstances where he signed the briefing note and report and delivered the file to the Minister on 20 December 2005, and the Minister signed the briefing note and issued the approval on the following day. In these circumstances, I can see no basis for applying a Jones v Dunkel inference to the effect that the Minister did not consider the material in the file ( Jones v Dunkel and Another (1959) 101 CLR 298).

145 From the Ministerial correspondence tracking system document and circumstances, I infer that the file S99/01179 - 6 was delivered to the Minister on 20 December 2005 for the specific purpose of the Minister deciding to approve or disapprove of the carrying out of the project. The Director-General's report identified itself as the report under s 75I of the 2005 Amendment Act. The briefing note referred to the report. It recommended that the Minister consider its findings and recommendations, and approve the project in accordance with s 75J by signing the attached instrument. Section 75J identified that the Minister was to consider the Director-General's report and, amongst other things, the advices contained in the report. Appendix A to the report referred to the advices and said copies were provided - as they were, in the file. The report, in various parts, has been underlined in black pen. The Minister signed both the briefing note in the space provided and the attached instrument of approval (which appeared after appendix A in the file) in black pen, and approved the project in accordance with the recommendation in the report. The Director-General signed the briefing note and the report in blue pen.

146 In these circumstances, I do not infer that the Minister failed to consider the advices as contained in file S99/01179 - 6. I reject the applicant's submission that it should be inferred that the Minister "did not read the file at all". The applicant has not discharged its onus in respect of any failure on the part of the Minister to consider the advices.

147 It follows that, insofar as the third and fourth claims relate to the advices, they must fail. I so conclude irrespective of any capacity on the part of the Minister to rely on his consideration of the Director-General's report and the references to the advices therein, as consideration of the advices. With respect to this last matter, I nevertheless am satisfied that the Minister considered the Director-General's report. Indeed, I infer from the circumstances I have described that the Minister subjected that report to a close reading.

The RTA's response to the issues raised in the submissions

148 The applicant claimed breach of s 75J(2)(a) and s 75I(1) and (2) in that the RTA's response to the issues raised in the submissions (or the "submissions report", being the two volume document described in [56] and [57] above) was required to be included in the Director-General's report and given to the Minister, and that the Minister was bound to consider that document. The applicant's submissions were founded on two propositions: - (i) the Director-General should be found to have considered it appropriate to include the submissions report in the Director-General's report within the meaning of s 75I(2)(f), and (ii) the Director-General's report could not have been understood by the Minister absent the submissions report. Hence, the Director-General was obliged to give the submissions report to the Minister, but did not do so in breach of s 75I(2)(f). The applicant submitted that the website reference in appendix A to the Director-General's report was insufficient for this purpose, and the website version omitted important appendices. The Minister was also obliged to consider the submissions report, but did not do so in breach of s 75J(2)(a).

149 The applicant relied on a number of references in the Director-General's report to support its claims. In particular, the applicant stressed two paragraphs at pp 19 and 23 of the file as follows: The Department has reviewed the Environmental Impact Statement (EIS), the Species Impact Statement (SIS), submissions to the EIS and SIS, the Submissions Report and additional information provided by the Proponent. A number of environmental issues have been identified as associated with the proposal as reviewed in Table 1. A more detailed consideration of key issues is provided in Section 3 of this report. It is important that this Section be read in conjunction with the Submissions Report to understand how all issues raised in submissions were addressed. The Department is satisfied that the responses provided by the Proponent in the Submissions Report are reasonable. [at p 19]

This Section of the Report provides the Department's assessment of the Project's key issues. The assessment is based on an examination of the environmental assessment, issues raised in submissions, the Proponent's Submissions Report and, where required, further assessment by the Department. It is important that this Section be read in conjunction with the Proponent's Submissions Report to understand how all issues raised were addressed. [at p 23]

150 The applicant also pointed out that various additional studies on key issues had been undertaken and included in the submissions report, and referred to in the Director-General's report (for example at p 20 with respect to ecological impacts and cultural heritage). Moreover, Mr Baker accepted that, in the Department's assessment, aspects of these issues (threatened species and Aboriginal archaeology) were the two key issues. Finally, the project that the Minister approved was described in the instrument of approval, Schedule 1 quoted at [69] above, as the project as described in, amongst other documents, the submissions report.

151 The respondents submitted that: - (i) nothing in s 75I identified any need to include the submissions report in the Director-General's report, (ii) in contrast, cl 8B(d) of the 2005 Amendment Regulation stated that the Director-General's report is to include copies of the submissions or a summary of the issues raised in the submissions, and a summary was provided, (iii) insofar as the applicant relied on s 75I(2)(f), the Director-General made clear that he did not consider it appropriate to include the submissions report - because in appendix A to the Director-General's report, the reference to s 75I(2)(f) had the entry "This Report" next to it, (iv) the applicant was misreading the Director-General's report and, in particular, the two parts quoted above. Those parts meant only that, if the Minister wished to see how each and every issue had been addressed, the Minister should refer to the submissions report. It was a matter for the Minister alone to decide if he wished to do so or not, (v) the submissions report was available on the website for the Minister to refer to, if the Minister so wished, and (vi) Mr Baker had read the submissions report and it was discussed at some length in the Director-General's report, which the Minister should be inferred to have read.

152 I infer that the Minister did not have a hard copy of the submissions report and had not downloaded (or had downloaded on his behalf) the submissions report as available on the Department's website (that is, the report but for appendices B, C, K, L and M). My reasons are that: - (i) the Director-General received the submissions report on 14 October 2005. This is consistent with the scheme of Pt 3A, in which applications for the Minister's approval, and related documents, are lodged with the Director-General, not the Minister (s 75E(3), 75H(1) and s 75H(6)), (ii) the submissions report was a two volume document as described in [56] and [57] above, (iii) the submissions report was not within file S99/01179-6 delivered to the Minister on 20 December 2005, (iv) appendix A to the Director-General's report did not identify the submissions report as available on the Department's website (although it was so available but for certain appendices), (v) there is no document on file S99/01179-6 disclosing any movement of the submissions report from any officer of the Department to the Minister, although there are records of the movements of correspondence between the Minister and the Department, (vi) the Minister admitted that he did not personally access any website in respect of the project on 20 or 21 December 2005, (vii) Mr Baker had not taken his copy of the submissions report with him on 20 December 2005 to the Director-General or at any earlier time to the Director-General or Minister.

153 The issue is then the consequence, if any, of the inference I have drawn above. For this purpose, I put to one side (temporarily), the respondent's submissions that the Minister considered the submissions report by reading the Director-General's report.

154 First, I do not accept that the Director-General considered it appropriate to include the submissions report in the Director-General's report as "other matter" identified in s 75I(2)(f). To the contrary, the extracts of the report relied on by the applicant, read in the overall context of the report, must be understood as informing the Minister only that if the Minister wished to see how each and every issue raised in the 88 submissions received had been addressed, the Minister should refer to the submissions report. In the face of the entry in appendix A to the Director-General's report next to s 75I(2)(f), those extracts cannot be understood as the Director-General having considered it appropriate to include the submissions report in the Director-General's report. The references relied on by the applicant cannot constitute the submissions report as such a matter. I find that the Director-General did not consider it appropriate to include the submissions report in the Director-General's report as "other matter" identified in s 75I(2)(f).

155 Secondly, I do not accept that the Minister was incapable of understanding the Director-General's report absent the submissions report. The Director-General's report, at p 16, said that: No design modifications to the concept design are proposed in the Submissions Report, however, changes have been made to the package of mitigation measure and compensatory habitat. These changes would either be neutral or would minimise the environmental effects of the project.

156 The Director-General's report included a figure showing the location of the project (p 17). It contained a description of the project and its context (pp 23 to 25). It assessed the key issues associated with the project (pp 25 to 43). It identified the proponent's mitigation and environmental management strategies (pp 44 to 47). Insofar as the Director-General's summary of the issues raised in submissions (at pp 19 to 22) referred to additional material in the submissions report, the summary also contained a description and assessment of that material - it being kept in mind that the "statement of commitments" was included in the submissions report (see, in particular, at pp 30, 32 to 38, 39 to 43, and 44 to 47). The nature of the project was apparent on the face of the Director-General's report, as were the key aspects of the manner in which the RTA had addressed issues raised in the submissions in the submissions report.

157 For the same reasons, I do not accept the applicant's submission that the Minister could not have understood the project to which he granted approval (given the reference to the submissions report in Schedule 1 of the instrument of approval). The project was accurately described in the Director-General's report (and the applicant did not submit to the contrary).

158 From these conclusions, it follows that I do not accept that the Director-General was obliged to include the submissions report in the Director-General's report or give the submissions report to the Minister under s 75I. Given the terms of s 75J(2), the Minister was not obliged to consider the submissions report. No reference is made in s 75J(2)(a) to (c) to "submissions report" or proponent's "response to issues raised in submissions". Hence, the Minister was not bound to consider that document.

159 The applicant emphasised the importance of the ecological and cultural heritage issues to the merits of the project, and that the submissions report contained information additional to the environmental impact statement and species impact statement about those important matters. Assuming that to be so, the position nevertheless is that: - (i) for the reasons given, I have found that the Director-General did not consider it appropriate to include the submissions report in the Director-General's report. Hence, s 75I(2)(f) was inapplicable, (ii) nothing in s 75I or elsewhere in Pt 3A obliged the Director-General to include the submissions report in the Director-General's report or deliver the submissions report to the Minister, (iii) the Director-General's report and project were comprehensible absent the submissions report, and (iv) nothing in s 75J or elsewhere in Pt 3A obliged the Minister to consider the submissions report.

160 The effect of the applicant's submissions is that the importance of ecological and cultural heritage issues to the merits of the project somehow elevated the submissions report to an essential matter, which the Director-General had to deliver to the Minister and the Minister was bound to consider. Determining what the Director-General had to include in the Director-General's report and give to the Minister, and what the Minister was bound to consider is a question of construction of the statute. It cannot be determined by reference to the perceived importance of an individual document in a particular case. Embracing the applicant's submission in this regard would transgress the proper scope of judicial review: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J. See also Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277 at [79] and Bruce v Cole and Others (1998) 45 NSWLR 163 at 186E). The provisions of Pt 3A made it a matter for the Minister alone to decide whether or not he wished to consider the submissions report. Any failure to do so was not a breach of the Minister's obligation under s 75J(2)(a) of the 2005 Amendment Act.

Conclusion on s 75J(2)(b), advices from public authorities and submissions report

161 It follows that, insofar as the third and fourth claims related to any advice from the Minister having portfolio responsibility for the RTA, the advices from public authorities relied on by the applicant and the submissions report, the claims must be rejected. For the reasons given with respect to the submissions report, the sixth claim must also be rejected.

162 As noted, I am satisfied that the documents accepted by the Director-General under cl 8J of the 2005 Amendment Regulation to constitute the proponent's environmental assessment for the purpose of Pt 3A of the 2005 Amendment Act were the environmental impact statement and species impact statement. Although the Director-General's letter of 20 October 2005 referred to the environmental impact statement only, the letter must be construed in the context of both the RTA's request (which referred to the Director-General accepting both the environmental impact statement and species impact statement as the RTA's environmental assessment), and s 112(1B) of the EPA Act, pursuant to which those statements were prepared and exhibited. The terms of the environmental impact statement, moreover, disclosed that the species impact statement accompanied the environmental impact statement (p 10-1).

163 I am satisfied that the Director-General gave a report to the Minister as referred to in s 75I(1) (see above). Appendix A to that report referred to s 75I(2) in terms, and said that the proponent's environmental assessment was available on the Department of Planning's website. I infer that the Minister had indicated that these arrangements were appropriate(s 153(1)(c)), as the Minister approved the recommendation in the report by signing the briefing note and the instrument of approval, which was attached to the Director-General's report. Hence, I am satisfied that the Director-General also complied with s 75I(2)(a).

164 I infer that the Minister did not have a hard copy of the environmental impact statement and species impact statement and had not downloaded (or had downloaded on his behalf) these documents as available on the Department's website. My reasons with respect to the submissions report set out in [152] above, other than (iv), apply equally to the environmental impact statement and species impact statement in this regard.

165 I am satisfied that an extract from the environmental impact statement (pp 6-1 to 6-36) and the environmental impact statement summary brochure (see the description at [20] above) were before the Minister on 20 and 21 December 2005, because those documents were part of file S99/01179-6 delivered to the Minister by the Director-General. For the same reason as set out above with respect to the advices from public authorities, I do not accept the applicant's submission that I should infer that "the Minister did not read the file at all". Hence, the applicant has not discharged its onus in respect of any failure on the part of the Minister to consider the summary brochure and the environmental impact statement extract, as contained in file S99/01179-6.

166 For the reasons given above, I consider that s 75J(2)(a), construed in context, required the Minister in this case to consider the Director-General's report as referred to in s 75I(1) and the advices as referred to in s 75I(2)(b). I am satisfied the Minister did so. There was no preferred project report or panel report. The Minister was not obliged to consider the proponent's environmental assessment as referred to in s 75I(2)(a), but that environmental assessment was to be included in the Director-General's report in the sense I have indicated (which was done). In consequence, I am satisfied that the applicant's challenges based on breach of s 75I(1) and (2) and s 75J(2)(a) and (b) (and, hence, s 75J(1)(b)) cannot be upheld.

167 Given the conclusions reached above, many of the issues agitated by the parties do not arise. Nevertheless, it is appropriate that I express my conclusions about the matters that were fully argued before me.

168 The applicant submitted that the Minister was obliged personally to consider the advices from public authorities, submissions report and proponent's environmental assessment, and could not rely on consideration by others. The applicant particularly relied on Tickner v Chapman to support these submissions, as well as Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 38 per Mason J.

169 As observed by Mason P in Minister for Local Government and Another v South Sydney City Council (2002) 55 NSWLR 381 at [211], the reasoning in Tickner v Chapman does not exclude the capacity for a decision-maker to consider a matter by relying upon another person's description or summary of the matter. As the decision of the trial judge in that matter ( Chapman and Others v Tickner and Others (1995) 55 FCR 316) disclosed, the facts were unusual. The Minister was obliged to consider the "representations attached to the report". In a statement of reasons for the decision, there was no reference to the representations having been considered. The Minister was told only that the representations (which were in a sealed envelope) contained nothing inconsistent with the report (at 354 and 355). The report, while influenced by the representations, did not disclose their substance, but annexed the sealed envelopes as a confidential exhibit (at 361).

170 On the appeal, Black CJ said that the Minister's personal obligation to consider the representations did not mean that the Minister was denied the assistance of staff in so doing, and he "would not rule out the possibility of some representations being quite capable of effective summary", whilst others may not (at 464F). Burchett J expressed a similar view at 476D-G, as did Kiefel J at 494A (albeit qualified at 495G and 497D). Observations to similar effect were made by the Privy Council in James Edward Jeffs and Others v New Zealand Dairy Production and Marketing Board and Others [1967] AC 551 at 569A and Minister for Aboriginal Affairs and Torres Strait Islander Affairs v State of Western Australia and Others (1996) 67 FCR 40 at 61D-E, (which are more apt to apply to the circumstances here than the well known observations about Ministerial reliance on departmental efforts in Bushell and Another v Secretary of the State for the Environment [1981] AC 75 at 95, Minister for Aboriginal Affairs v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 30 - 31 per Gibbs CJ, 61, 65-66 per Brennan J, O'Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1983) 153 CLR 1 at 11 per Gibbs CJ, FAI Insurances Limited v The Honourable Sir Henry Arthur Winneke and Others (1982) 151 CLR 342 at 416-417 per Brennan J, and Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 at 368).

171 The facts in Tickner v Chapman are not analogous to the present case. The matters the applicant submitted that the Minister was required to consider (the advices, the submissions report and the proponent's environmental assessment) were not confidential documents. I accept that Mr Baker had read them all. I accept that Mr Baker discussed with the Director-General the contents of the draft report he had prepared for the Director-General on at least three occasions. The Director-General's report referred to these documents. The submissions report and proponent's environmental assessment are dealt with extensively throughout the Director-General's report, which I infer was read by the Minister. The outcomes of what I infer to be ongoing consultations with the public authorities about their initial written advices are also described and assessed in that report. As noted, I construe s 75J(2)(a) as requiring the Minister to consider the substance of these final "advices".

172 After the evidence had closed, the applicant handed up a table in submissions said to identify the matters covered in the environmental impact statement, species impact statement and submissions report which were not addressed, or not adequately addressed, in the Director-General's report. The applicant's counsel identified the purpose of this document as going only to the question of relief. Specifically, it was said that "it relates to any submission that might be put that if your Honour finds that these are directory provisions that require substantial compliance but not complete compliance then the question whether there had been substantial compliance can be answered by demonstrating the Minister didn't just have a full and complete summary and discussion of all these issues in the Director-General's report". The respondents said that if "it is now belatedly being alleged that there was such a deficiency and if that is the case we are not aware of it being expressly pleaded in the points of claim and we would object to the matter being put in that way now".

173 I think it is clear from the points of claim that the applicant's case was framed as a failure to consider solely by reason of the relevant documents not having been included in the Director-General's report. If the provision of the table is an invitation to me to compare each page of the environmental impact statement, species impact statement and submissions report with the Director-General's report, and conclude that the Director-General's report was inadequate to discharge the Minister's obligation of consideration, I decline to do so. The point was not pleaded. The applicant raised it for the first time in its closing submissions. It would require me, absent any submissions from the respondents (or from the applicant other than the handing up of the table), to analyse much of the environmental impact statement and species impact statement (estimated to contain over 3000 pages), as well as the Director-General's report, to ascertain the accuracy of the table and the materiality of the matters it contains. Moreover, my cursory comparison of the table with the Director-General's report discloses matters which I would expect to have been the substance of submissions by the respondents (had they been given notice of the contents of the table). For example, the first item says that groundwater issues were identified in the environmental impact statement but that there was no detailed identification of these issues or effectiveness of mitigation measures in the Director-General's report, and provides a reference to p 7 of that report. However, groundwater is dealt with in the fact sheet behind the Ministerial briefing note and pp 6, 7 and 31 of the main body of the Director-General's report, as well as in considerable detail in the statement of commitments forming part of the conditions of approval (item 18 at pp 15 to 16 of that attachment) which were attached to the Director-General's report. The table does not appear to have been prepared having regard to the totality of the Director-General's report. In all of these circumstances, I uphold the respondents' objection to the applicant's reliance on the table. I have marked the table for identification and will retain it on the Court's file.

174 The Director-General's report contained extensive references to the environmental impact statement, species impact statement and submissions report. There is no basis for me to find that the Director-General's report was other than a reliable and accurate summary of the material aspects of the environmental impact statement, species impact statement and submissions report. Moreover, the Minister had the benefit of the whole of file S99/01179-6, which also contained the environmental impact statement summary brochure, the extract from the environmental impact statement, as well as correspondence from members of the public pointing out alleged inadequacies in the environmental impact statement.

175 I do not accept the applicant's submission that the environmental impact statement extract in the file was meaningless absent identification of its provenance. The extracts, on their face, identify their provenance as the Tugun Bypass environmental impact statement. Equally, the fact that the summary brochure was not part of the environmental impact statement does not make that document irrelevant to this issue of fact. In particular, I infer that the authors of the environmental impact statement prepared the summary brochure, and that the summary of the environmental impact statement therein was accurate.

176 For the above reasons, I find that, in the Minister considering the material contained in file S99/01179-6, including the Director-General's report, the Minister also considered the proponent's environmental assessment, the submissions report (and the advices provided by public authorities).

177 The applicant submitted that s 75J(1) created jurisdictional facts and that each of the breaches the applicant had alleged meant that the "environmental assessment requirements under this Division with respect to the project" had not been complied with. The respondents did not address the jurisdictional fact argument (which they said did not arise) and submitted that the "environmental assessment requirements under this Division with respect to the project" as referred to in s 75J(1)(b) referred only to the requirements in s 75F. As I did not have the benefit of full argument on the jurisdictional fact issue, it is inappropriate for me to express a conclusion in that respect.

178 I also hesitate to express any concluded view about the meaning of "environmental assessment requirements under this Division…" in s 75J(1)(b), when I have not found breach. Without adopting the applicant's expansive approach, I apprehend that the respondents may place too much weight on the reference to "environmental assessment requirements" in s 75F and too little on the general heading to Div 2 (Environmental assessment and approval of projects) and the words "…under this Division with respect to the project" in s 75J(1)(b). Those words suggest a process rather than the environmental assessment requirements imposed by the Director-General under s 75F. Further, given that the Director-General must accept (or not) the proponent's environmental assessment, it is not clear to me why s 75J(1)(b) would elevate compliance with these requirements above other aspects of the process. My tentative view is that s 75J(1)(b) cannot be read as narrowly as the respondents contend.

179 The respondents submitted that if I found any breach, s 75X(5) would cure all. The applicant submitted that such a conclusion would offend basic principles of construction and set the rule of law aside. The applicant referred to Association for Berowra Creek Inc v Minister for Planning and Another (2003) 124 LGERA 99 at [53] to [55] in which his Honour construed an equivalent provision (s 102) as limited to procedural requirements. While it is not mentioned in his Honour's reasons, the explanatory note that accompanied the bill introducing s 102 states that it provided for "the identification of mandatory procedural requirements concerning State significant development".

180 Section 75X(5) may be a response to observations about the "resonating silences" of most legislation with respect to the consequences of breach ( Carroll and Others v Mijovich and Others (1991) 25 NSWLR 441 at 449C per Kirby P). The intent of the section is far from clear. The common law had moved beyond the mandatory/directory distinction before s 75X(5) was enacted ( Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [92]-[93]). The respondents' submitted that the use of the word "only" in the provision carried a necessary corollary (that is, breach of all requirements of Pt 3A other than those relating to the public availability of an environmental assessment cannot lead to invalidity).

181 The primary difficulty with the respondents' submission is that it is at odds with the strictures of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [32], [35] and [65]. As in Plaintiff S157/2002 , the respondents' submission places a construction on s 75X(5) and "asserts that all other provisions may be disregarded".

182 Section 75X(5) does not clearly identify the consequences of breach of provisions, other than (perhaps) those relating to public availability of the environmental assessment. It is not the equivalent of the provisions considered in Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57 (which did not exclude judicial review in any event) or Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212. Further, the respondents' submission that the words "validity of an approval" mean that the conclusions reached in Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707 necessarily apply to s 75X(5) (that is, that the provision protects against jurisdictional error but subject to the Hickman principles - The King v Hickman and Others; Ex parte Fox and Another; The King v Hickman and Others; Ex parte Clinton and Others (1945) 70 CLR 598 is unpersuasive. The provisions are different.

183 In reconciling s 75X(5) with the balance of Pt 3A, it is apparent that the respondent's submissions about its meaning should be rejected. If the section operated as the respondents contend, then query the role of s 75T for critical infrastructure projects and s 75X(4) generally. As the applicant submitted, s 75T contemplates the continued efficacy of ss 122 to 124 of the EPA Act, and that challenges to approvals may be brought (albeit by a limited class of persons) on grounds other than a failure to make a proponent's environmental assessment publicly available.

184 The applicant's submissions on s 75X(5) are persuasive. That is, the section is to be construed as an expression of Parliament's intention that the only provision breach of which will necessarily lead to invalidity is s 75H(3). The consequences of breach of all other provisions, however, are left at large. A far clearer expression of Parliamentary intention than an implied negative corollary arising from the word "only" would be required to effect any other meaning. As such, the consequences of breach of all other provisions will be determined in the ordinary course consistent with the principles laid down in Project Blue Sky . As I have not found breach of any provision and was not provided with submissions on the application of the Project Blue Sky principles to any particular breach alleged, I need and should not say any more on this aspect of the matter.

185 The applicant claimed that cl 8J(3) of the 2005 Amendment Regulation was invalid and, if valid, inapplicable on the facts of this matter. Insofar as relevant to this matter, cl 8J(3) is part of a scheme in the regulations enabling the Director-General to accept requirements issued under Div 4 of Pt 5 as environmental assessment requirements under Pt 3A, a Div 4 of Pt 5 environmental impact statement as an environmental assessment under Pt 3A, and a period of public exhibition of such a statement as a period of public availability under s 75H(3). The 2005 Amendment Act (Sch 1, [27]) repealed Div 4 of Pt 5. A feature of Div 4 of Pt 5 (s 115B) was that a proponent had to complete substantial steps before the proponent could seek the Minister's approval. Those steps included obtaining and publicly exhibiting the environmental impact statement. That is what occurred here. Hence, cl 88 of Sch 6 to the EPA Act (inserted by the 2005 Amendment Act) was inapplicable, and cl 8J(1) to (3) relied upon instead by the Director-General.

186 The 2005 Amendment Regulation explanatory note identified various sources of power for its making (ss 75Z, 157 and Sch 6, cl 1(1)). The parties' submissions concerned Sch 6, cl 1(1) to the EPA Act (amended by the 2005 Amendment Act, Sch 6, [15], to include reference to that Act as one where the regulations may contain provisions of a savings or transitional nature consequent on its enactment). As Div 4 of Pt 5 was repealed by the 2005 Amendment Act, the application of cl 8J(3) to such matters was necessarily confined to steps commenced under Div 4 of Pt 5 prior to the coming into force of Pt 3A. I will not deal with any respects in which cl 8J(3) might be beyond power other than those argued. This is appropriate given the potential application of s 32 of the Interpretation Act 1987.

187 First, the applicant submitted that cl 8J(3) was not consequent on the enactment of the 2005 Amendment Act as required by cl 1(1) of Pt 1 of Sch 6 to the EPA Act (given effect by s 159). "Consequent on" signifies a causal relationship. Regulations are consequent on the 2005 Amendment Act if made because of it. Such regulations must be "of a savings or transitional nature". Such regulations may be inconsistent with the provisions of Sch 6 relating to the 2005 Amendment Act (Sch 6, cl 87).

188 The key fact here is that the 2005 Amendment Act repealed Div 4 of Pt 5. Although there are differences between the provisions of Pt 5 and Pt 3A (as identified in the applicant's points of claim at para 48b), the scheme of which cl 8J(3) forms part is able to be characterised as of a savings and transitional nature consequent on the enactment of the 2005 Amendment Act. Clause 8J(1) to (3) enabled the pre-approval steps taken prior to the repeal of Pt 5 Div 4 to be "saved". It thereby provided a transition to the balance of the provisions of Pt 3A. Regulations of a savings or transitional nature, by definition, will save some things under the repealed law and provide a transition to other things under the new law. A purpose of such a provision is likely to be (as here) establishing a regime so that things done under the old law need not be done again under the new law. Clause 8J(3), in its application to public exhibition of an environmental impact statement to which Div 4 of Pt 5 would have applied (but for its repeal), falls within the description in cl 1(1) of Sch 6.

189 Secondly, the applicant submitted that cl 8J(3) was inconsistent with Pt 3A because of the process differences between Pt 3A and Pt 5. As part of that submission, the applicant referred to s 75L(2) and (3). The applicant submitted that if cl 8J(3) were relied on with respect to a Pt 4 designated development, then objectors to that development would not have a right of appeal as they would not have made a submission under s 75H. Hence, cl 8J(3) was inconsistent with s 75H(3) and s 75L. Sections 75L(2) and (3) were inapplicable in this case because they apply only if a project, but for Pt 3A, would have been designated development under Pt 4 of the EPA Act. The Tugun Bypass project was not such a project. The steps taken in respect of the Tugun Bypass project were under Pt 5, not Pt 4. These facts make this aspect of the applicant's argument hypothetical.

190 The hypothetical quality of this argument creates potential difficulties. For example, given that the terms of cl 8J(3) enable the Director-General to accept a period of public exhibition of a Pt 4 designated development environmental impact statement as the period of public availability under s 75H(3), a person who made a submission as required under Pt 4 may well fall within s 75L(2). Further, and as the respondents submitted, if there were any inconsistency between cl 8J(3) and s 75L(2) and (3), it prima facie could be resolved by application of s 32 of the Interpretation Act 1987. The reading down of any excess of power with respect to steps taken under Pt 4 of the EPA Act could not be characterised as radically altering the provision in its application to the repealed Div 4 of Pt 5 (in respect of which, no such potential inconsistency can arise). The clause thus confined, would operate precisely as drafted with respect to the nominated steps under the repealed Div 4 of Pt 5. Hence, if necessary, the provision could be read down ( El Cheikh v Hurstville City Council and Others (2002) 121 LGERA 293 at [37] to [42]).

191 Part of the same reasoning answers the submission about s 75X(5). Section 159 and Sch 6 are a part of the EPA Act, as is s 75X(5). Section 75X(5) (and indeed all provisions of Pt 3A) cannot be construed in isolation from the fact that the legislature, through s 159 and cl 1(1) of Sch 6, expressly authorised savings and transitional regulations to be made consequent on the 2005 Amendment Act. In that context, contrary to the applicant's submissions, the operation of cl 8J(3) with respect to the nominated steps taken under the repealed Div 4 of Pt 5 is not repugnant to s 75X(5) or s 75H(3).

192 The applicant submitted (but did not plead) that the relationship between cl 8J(3) and the 2005 Amendment Act was so exiguous "that it could not reasonably have been adopted as a means of fulfilling the statutory object" ( The State of South Australia v Tanner and Others (1989) 166 CLR 161 at 178-179). In my view, in its application to the nominated steps taken under the repealed Div 4 of Pt 5, cl 8J(3) answers the statutory description in cl 1(1) of Sch 6 to the EPA Act. The present case provides a good example of the aptness of cl 8J as a savings and transitional provision for that purpose. The environmental impact statement had been prepared. It had been exhibited for nearly three months. Pt 3A then commenced. Div 4 of Pt 5 was repealed. To enable the Pt 5 processes to be saved and facilitate a transition to Pt 3A was reasonable and proportionate.

193 The applicant submitted that cl 8J(3) had no operation with respect to the project once the RTA lodged the application under Pt 3A on 10 October 2005. By that act, the applicant submitted, the transition had been completed and/or a fresh application had been made which was subject to Pt 3A as a whole.

194 The submission overlooks the fact that the 2005 Amendment Act not only inserted Pt 3A into the EPA Act, but also amended cl 1(1) of Sch 6 to enable regulations to be made of a savings and transitional nature consequent on the enactment of the 2005 Amendment Act. The lodgement of the application under s 75E did not necessarily bring the full weight of Pt 3A to bear upon the project which had commenced in the context of Div 4 of Pt 5 being in force. There remained scope for s 159, cl 1(1) of Sch 6, and regulations made pursuant thereto, to operate. In this case, the facts enabled the Director-General to "save" aspects of the process under Pt 5, which would otherwise have been set at naught by the repeal of Div 4 of Pt 5. The Director-General did so. The applicant's inapplicability argument should not be accepted.

195 It follows that I do not accept the arguments of the applicant with respect to the invalidity and inapplicability of cl 8J(3).

196 For the reasons set out above, I do not uphold the applicant's claims. The class 4 application should be dismissed.

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