Does s 69 of the TSC Act apply?
49An important matter ultimately put in issue by the parties was whether s 69 of the TSC Act has any application to the exercise of the power by a council to grant consent to a development application under s 80 of the EPA Act. The answer to that question lies in a consideration of the language and objects of the two Acts, the operation of the relevant statutory schemes in the two Acts, how they are intended to interact and some legislative history.
50I first consider aspects of the legislative scheme in the EPA Act for the grant of consent to a development application. I will proceed to consider the scheme as it would apply to a council as the consent authority. Section 79C (set out earlier) identifies matters which must be taken into account by the council in so far "....as (they are) of relevance to the (proposed) development....". Those matters include the impact on the environment: s 79C(1)(b), and the public interest: s 79C (1)(e). In so far as these generally described matters might include consideration of the impact of the proposed development on threatened species, populations or ecological communities or their habitats, a procedure is established which, in appropriate cases, puts before council information and other relevant material to address that issue.
51If the application is in respect of the development on land that is "likely to significantly threatened species, populations or ecological communities" or their habitats, then the application must be accompanied by an SIS: s 78A(8). In deciding whether there is likely to be that effect, it is necessary to address the matters identified in s 5A which include the factors identified in subsection (2). One factor specified in s 5A(2)(f) is whether the action proposed is consistent with the objectives or actions of a recovery plan (which by operation of s 4 has, relevantly, the same meaning as in the TSC Act). Having regard to the statutory scheme, this assessment (whether there is likely to be that effect) will either be made by the applicant at some time before the application is lodged or thereafter but before the application is determined or by the council immediately before that latter time: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 at [82].
52What the SIS must address is specified by s 110 of the TSC Act (and any applicable regulations: see s 112) and in such requirements as may be imposed by the Director-General under s 111. Section 110 provides:
(1) A species impact statement must include a full description of the action proposed, including its nature, extent, location, timing and layout and, to the fullest extent reasonably practicable, the information referred to in this section.
(2) A species impact statement must include the following information as to threatened species and populations:
(a) a general description of the threatened species or populations known or likely to be present in the area that is the subject of the action and in any area that is likely to be affected by the action,
(b) an assessment of which threatened species or populations known or likely to be present in the area are likely to be affected by the action,
(c) for each species or population likely to be affected, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or threat abatement plan applying to it,
(d) an estimate of the local and regional abundance of those species or populations,
(e) an assessment of whether those species or populations are adequately represented in conservation reserves (or other similar protected areas) in the region,
(e1) an assessment of whether any of those species or populations is at the limit of its known distribution,
(f) a full description of the type, location, size and condition of the habitat (including critical habitat) of those species and populations and details of the distribution and condition of similar habitats in the region,
(g) a full assessment of the likely effect of the action on those species and populations, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,
(h) a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,
(i) a full description and justification of the measures proposed to mitigate any adverse effect of the action on the species and populations, including a compilation (in a single section of the statement) of those measures,
(j) a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the species or population.
Sub-section (3) details substantially the same matters as they might arise in relation to an ecological community.
53Accordingly, when a Council is about to consider a development application which is "likely to significantly affect threatened species, populations or ecological communities" or their habitats, it will, if the requirements of the EPA have been met, have before it an SIS addressing the matters identified in s 110. I should, at this point, deal with one minor but important matter of construction. It can be seen that in s 110(2)(c) (and also in (3)(b)) there is a requirement to provide "details of..." followed by five identified matters. It is tolerably clear, in my opinion, that those words "details of" qualify each of the matters. Thus details must be provided of conservation status, processes, habitat requirements and any recovery plan or threat abatement plan.
54One further aspect of the scheme should be noted. If the development on the land or part of it is likely to significantly affect a threatened species, population, or ecological community or its habitat, development consent cannot be granted without the concurrence of the Director-General of the Department of Environment, Climate Change and Water: s 79B(3). In addition, s 79B mandates that the Director-General must take into account specified matters in deciding whether or not concurrence should be granted. They are found in s 79B(5) which provides:
(5) In deciding whether or not concurrence should be granted under subsection (3), the Director-General of the Department of Environment, Climate Change and Water or the Minister administering the Threatened Species Conservation Act 1995 must take the following matters into consideration:
(a) any species impact statement that accompanied the development application,
(b) any assessment report prepared by the consent authority,
(c) any submissions received concerning the development application,
(d) any relevant recovery plan or threat abatement plan,
(e) whether the development proposed is likely to reduce the long-term viability of the species, population or ecological community in the region,
(f) whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction,
(g) the principles of ecologically sustainable development,
(h) the likely social and economic consequences of granting or of not granting concurrence.
Again, if the requirements of the EPA Act have been met, development consent will only be given to an application which is likely to significantly affect threatened species, populations or ecological communities or their habitats if the Director-General has given his or her concurrence and that would occur only if the Director-General has taken into account any relevant recovery plan: see s 79B(5)(d).
55The TSC Act also addresses the powers of a council in the sense that s 69 and related sections (set out earlier) concern the exercise of power by any public authority which is defined in s 4 to include a local authority constituted by or under an Act. Plainly enough that would include a council constituted under the Local Government Act 1993 (NSW). This is agreed by the parties. The Alliance's case was, in part, that s 69 was engaged when a council was deciding to grant consent to a development application under s 80 of the EPA Act. That was because in s 69(1) the concluding words "... and must not make decisions that are inconsistent with the provisions of the recovery plan" comprehend, amongst other decisions, a decision under s 80. Also, the expression "statutory discretion" in s 69(2) comprehends, it was submitted, the discretionary power conferred by s 80.
56If, according to the Alliance, the granting of consent to a development application was inconsistent with the provisions of (or the implementation of measures included in) a recovery plan, then the procedures in s 71 and consequential provisions must be followed. That is, notice of the proposed granting of consent must be given to the Director-General: see s 71(1)(a) and the consultations contemplated by s 72 must take place. If the matter is unresolved (because the Director-General has concluded that the departure from the recovery plan is unacceptable) then the relevant Ministers must be consulted under s 73 and if the matter remains unresolved after Ministerial consultation, the Premier is to resolve it. Before further considering the proper construction of s 69, it is convenient to refer to the legislative history of a number of these provisions.
57The TSC Act was enacted in 1995. It included in Division 2 of Part 4 a suite of provisions including sections 69, 71, 72 and 73 which were in virtually the same terms as those sections in their present form. The differences are immaterial. For the purposes of those sections the "Director-General" was then the Director-General of National Parks and Wildlife.
58Section 153 of the TSC Act when enacted also effected amendments to the EPA Act. The scheme created by these amendments concerning applications for development consent which might affect endangered species and the like, broadly corresponded with the existing scheme outlined above. However there were some differences. The 1995 amendments to the EPA Act included the insertion of the definition of "recovery plan" (discussed earlier) and the introduction of s 5A (in terms different to its present form) which identified factors to be considered in determining whether there was likely to be a significant effect on threatened species, populations or ecological communities or their habitats. If this effect was likely, a newly introduced provision (s 77(3)(d1)) required an application for development consent to be accompanied by an SIS.
59Also making this determination (about likely significant effect) was relevant because of s 77A, again introduced into the EPA Act at this time. That section prevented the grant of development consent by a council with this likely effect without the concurrence of the Director-General of National Parks and Wildlife. Under s 77A(3) the Minister administering the TSC Act could step into the shoes of the Director-General or review or amend any recommendation the Director-General might have been proposing to make. Also introduced was s 77C that identified matters to be considered by the Director-General in deciding whether or not concurrence should be granted under s 77A. That included any SIS that accompanied the development application (par (a)) and any relevant recovery plan (par (d)). Another feature of this scheme was s 77B which authorized the Planning Minister to determine a development application without the concurrence of, or consultation with, the Director-General. That power could be exercised if the Minister held the opinion it was expedient in the public interest to do so having regard to matters which the Minister thought of significance for the state or for regional environmental planning.
60The 1995 amendments to the EPA Act also added to the matters identified in s 90 (the legislative predecessor to s 79C) which had to be considered when deciding whether to grant consent to a development application. The additions included paragraphs (c3) and (c4) identifying, respectively, as a relevant matter "whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats" and "any relevant recovery plan".
61The obvious question, for present purposes, which is posed by the enactment of the TSC Act and the amendments to the EPA Act in the one Act is whether Parliament intended, at the time, to put in place a regime under Division 2 of Part 4 of the TSC Act which was to operate on the exercise of a council's power to grant a development application if the exercise of the power was inconsistent with the implementation of a recovery plan while at the same time putting in place a scheme under the EPA Act for dealing with applications for development consent which were likely to adversely affect threatened species, populations or ecological communities, or their habitats which would raise for consideration, expressly, any relevant recovery plan.
62In my opinion, Parliament did not intend this. Before discussing the terms of s 69 when originally enacted (bearing in mind it was in the same terms as now), it is necessary to describe the statutory context in which it then appeared. Part 4 of the TSC Act (when enacted and now) generally concerned recovery plans. Division I, as its title (forming part of the Act - s 35 of the Interpretation Act 1987 (NSW)) indicated, concerned the preparation of recovery plans. Section 56 (set out earlier) required the Director-General to prepare recovery plans.
63Section 59 identified what a recovery plan needed to address. It had to identify threatened species, populations or ecological communities to which it applied and their declared critical habitats. It had to identify threatening processes and what had to be done to ensure the recovery of the threatened species population or ecological community and to protect the critical habitat. It also had to state how the objects of the Act were to be implemented or promoted for the benefit of the threatened species, population or ecological community and the method by which progress towards achieving those objects was to be assessed. It also had to identify the persons or public authorities who were responsible for the implementation of the measures included in the plan. Thus, in summary, the plan was to be a mixture of objectives and means of achieving those objectives.
64Division 2 concerned the implementation of recovery plans. Section 69(1) (set out earlier) contained two elements. The first was to impose a duty on, amongst others, public authorities (including councils) to take any appropriate action to implement those measures in the plan for which they were responsible. That much is clear enough from the language used.
65However, the content of the second element, identified after to the word "and" was far less clear. Indeed it was quite obscure. Generally it was framed as an unqualified prohibition on the making of certain decisions, namely decisions inconsistent with the provisions of a recovery plan. Two questions arise. Was the reference to "decisions" only to decisions made while discharging the duty to implement measures (the matter addressed by the first element in the subsection) or was it to any decision the public authority might make. The second question arises from the use of the word "inconsistent". What was the nature of the inconsistency addressed by the subsection? A decision might be inconsistent with the provisions of a recovery plan if it tended to lead to action that was antithetical to achieving the objectives of the recovery plan. A decision might also be inconsistent if it prevented (in whole or in part), compromised or rendered less effective action identified in the plan itself as the means of achieving those objectives. That might be so as a direct and immediate effect of the decision or indirectly as a result of someone taking action that the decision authorized.
66The TSC Act is beneficial legislation and should not be narrowly construed. There would be no reason, in principle, for not giving the words identifying the second element as wide a meaning as they were capable of bearing. On that approach one would not favour a construction of s 69 confining the second element to decisions made while discharging the duty to implement measures addressed in the first element of the section. Accordingly the second element would be concerned with any decision which the identified decision-makers might make which was inconsistent with a recovery plan in the way discussed in the preceding paragraph. Some support for this was found in the reference in s 73(3) to "functions under the Planning Act", namely the EPA Act. However this conclusion does not end the inquiry as to whether s 69(1) addressed a decision whether to grant consent to a development application.
67In terms, the prohibition in the second part of s 69(1) was absolute. It does not appear to me that s 69(2) modified or qualified that absolute prohibition. The focus of that subsection was the preservation of a statutory discretion affected by the implementation of a recovery plan, not the exercise of a power inconsistent with the provisions of a plan.
68They are four features of the way s 69(2) was expressed to operate which inform its construction. The first was that its operation was conditional in the sense that it had effect "if the implementation of a recovery plan" affected a statutory discretion. The second feature was that it declared what s 69 in its entirety was not intended to do, namely exclude the statutory discretion. The third feature was to oblige the decision-maker to take the recovery plan into account. Fairly clearly this obligation was intended to arise when the condition (the first feature) was satisfied, namely the implementation of a recovery plan was liable to affect the exercise of the discretion.
69The fourth feature arises from what was not said in s 69(2). Its operation was not conditioned by a possible or potential inconsistency between the implementation of a recovery plan and the consequences of the exercise of the statutory discretion.
70But was s 69(2) intended to identify, however indirectly, the class of decisions the second part of s 69(1) concerned and thereby ameliorate the effect of the absolute prohibition? That is, did s 69(2) tell us that the prohibition concerned statutory discretions affected by the implementation of a recovery plan and notwithstanding the prohibition the discretion could be exercised as long as the decision-maker took into account the recovery plan. I think not because this construction would render otiose the words following "and" in s 69(1). Accordingly even if that class of decisions included discretionary decisions (and there is no reason to doubt that it did) s 69(2) was not intended to ameliorate in its entirety, or even perhaps at all, the effect of the absolute prohibition.
71As noted earlier, a recovery plan was to be a mixture of objectives and the means of achieving those objectives. What s 69(2) addressed, in my opinion, was a situation where steps or action taken or to be taken as one of the means of achieving those objectives affected the exercise of a discretionary power. In other words, the subsection required a recovery plan to be taken into account if a statutory discretion was to be exercised and its exercise impacted on steps taken or to be taken in furtherance of the recovery plan.
72On this approach to the construction of s 69(2), it left unaffected the absolute prohibition arising in the second part of s 69(1). But elsewhere the effect of the absolute prohibition was moderated. In my opinion, the statutory scheme ameliorated the effect of the absolute prohibition in s 69(1) by the processes found in ss 71 to 73. That is, a power could be exercised in a way prohibited by s 69(1) if the exercise of the power was acceptable for the purposes of s 73, resolved through Ministerial consultation or ultimately resolved by the Premier. However those processes concerned only the exercise by a public authority of a function in a manner that was inconsistent with the implementation of measures included in a recovery plan. This was a more limited class of decision than those possibly comprehended by s 69(1) just discussed in [66] above. In the result, it seems to me that the prohibition in the second element of s 69(1) concerned only decisions involving the exercise of a function in a manner that was inconsistent with the implementation of measures included in a Recovery Plan. This narrower construction of the second element in s 69(1) is more harmonious with the first element than the broader construction and consistent with the subject matter and purpose of the processes in ss 71 to 73.
73Could the grant of consent to a development application under the EPA Act potentially and depending on the facts, have involved the "exercise (of) a function in a manner that is inconsistent with the implementation of measures included in the recovery plan"? I doubt that it was intended to be. This expression appeared to speak of a direct relationship between the manner of the exercise of the function and the inconsistency with the implementation of measures. The grant of consent could not have, of itself, effected the implementation of relevant measures. It is a singular and confined administrative act. It was true that potentially activities might have been undertaken by the successful applicant for the consent which may have impinged on the implementation of measures in the recovery plan. But that ultimate effect is not the result of the exercise of the function (of deciding whether to grant consent and doing so) in a manner inconsistent with implementation. The manner of the exercise of the function would be entirely neutral on the implementation of measures.
74Also supporting this construction of s 69 was the creation of two schemes in 1995 operating for what might be viewed as the same general purpose but potentially following different pathways of decision-making with the possibility of different results. Let it be assumed that certain consequences would have flowed from consent being granted to a development application. Assume further that activities, which might have been undertaken because consent had been given, would be likely to have had a significant effect on threatened species, populations or ecological communities, or their habitats. The applicant could have been expected to have prepared a SIS when applying for consent and that statement can be assumed to have identified this likely significant affect.
75The scheme under the EPA Act when amended in 1995 could well have operated this way. Council would have needed to seek under s 77A the concurrence of the Director-General who would have had to consider under s 77C any recovery plan in deciding whether to give concurrence. If concurrence was granted, council could then have granted consent to the development application. Without that concurrence, consent could not be granted. Also the Minister acting under s 77B might avoid the need for this concurrence. If the Director-General was proposing not to grant concurrence it would have been possible for the Minister to have intervened under s 77A(3)(a) or undertaken a review under s 77A(3)(b).
76If s 69(1) of the TSC Act also applied to the granting of consent (I assume, contrary to what I have already said, this was so) and granting it was inconsistent with the implementation of measures included in a recovery plan then notice had to be given to the Director-General under s 71. Given the nature and purpose of recovery plans, the inconsistency would most likely arise from the activities authorized by the consent which would likely adversely affect, threatened species, populations or ecological communities, or their habitats to which the plan was directed. By this route, the Director-General would have had to determine whether that the departure from the plan was acceptable. If not there was a process of review involving consultation between Ministers which, in certain circumstances, could lead to a determination by the Premier.
77While these two schemes had, superficially, common characteristics they were nonetheless different. While they could both operate with the same ultimate result (both resulting in the grant of consent or both resulting in the refusal of consent to the development application) this was not assured particularly given the potential involvement of the Premier in one scheme but not the other.
78In my opinion, s 69 of the TSC Act when first enacted in 1995, was not intended to operate on a decision by a council whether to grant consent to a development application. The effect of the possible grant of consent on threatened species and the like and whether consent should be granted was to be assessed and determined through the operation of the newly introduced provisions of the EPA Act.
79Since the enactment of the TSC Act and the 1995 amendments to the EPA Act, the applicable provisions of the former Act have remained substantially the same but the applicable provisions of the latter Act have been amended on several occasions since 1995. Have those amendments altered the position created by the 1995 legislation? That is, have the more recent amendments to the EPA Act manifest a legislative intention to render operative provisions of the TSC Act to the exercise of the power by council to determine whether to grant consent to a development application. I think not.
80The more significant amendments have been to change the test in s 5A for determining whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. Another has been the removal of express reference in s 79C (replacing s 90) to whether there was likely to be a significant effect on threatened species, populations or ecological communities, or their habitats (para (c3)) and any relevant recovery plan (para (c4)) as matters which must be considered when deciding whether to grant consent to a development application. However the retention of the requirement that a development application, if it is likely to have this effect, must be accompanied by a SIS (which must address any applicable recovery plan) makes it quite clear that a council must still consider the matters formerly addressed by paras (c3) and (c4) but under the more general rubric of environmental impacts and the public interest. I discuss this matter later.
81While looking at the history of legislative provisions and then moving to the way they are currently formulated in determining the meaning and effect of the current formulation might be thought to be unorthodox, it is justified in the present case. That is because quite plainly whatever Division 2 of Part 4 of the TSC Act was intended to achieve was determined in a context where simultaneous amendments were made to the EPA Act. This comparatively unusual history is of considerable importance in determining what Division 2 of Part 4 was intended to achieve.
82In the result, s 69 does not apply, in my opinion, to the determination by a Council of whether consent should be given to a development application.