Wolgan Action Group Incorporated v Lithgow City Council

(b) The council considered test results based upon a one day exposure only; (c) The council acted without a pending EPA report; (d) The council failed to address the impact of the proposal on all residents contrary to s 79C of the EP&A Act; (e) The council approved the application at a hastily convened meeting; and (f) The council failed to appreciate the impact of the added noise on the amenity of the residents at night time; and (7) The EPA, not the council, is the appropriate regulatory authority.

The last claim (7) was the subject of an amendment to the class 4 application by leave granted on 13 August 2001, whereby the following claim for relief was added to the application:- A declaration that the Environmental Protection Authority is the appropriate regulatory authority for the development consent.

It is appropriate and convenient to deal with each of the applicant's claims in turn.

Whether the development as modified is substantially the same development

The applicant relies upon the contents of the SEE to submit that the original application was deliberately pitched at a consent to development which would operate Monday to Saturday between the hours of 7.00am and 9.30pm with a curfew on Sundays.

The development described in the development application is as follows:- To build a road from Angus Place Colliery to Mt. Piper Power Station. See attached Statement of Environmental Effects.

A report to the council by the Environment Services Manager dated 7 September 1992 reflected the information contained in the SEE by informing the council that the company plans to haul approximately one million tonnes of Angus Place coal per annum to Mt. Piper for an initial contract period of 15 years with provisions for extensions after that time.

The conditions of the modified consent maintain condition 1 as it was originally imposed when the development application was granted in 1992. Condition 1 is to the effect that the development shall be carried out generally in accordance with the SEE, as modified by the conditions of consent. The determination by the council on 26 June 2000 clearly modifies any restriction on the hours of operation stipulated in the SEE.

It is contended by the applicant that the additional user proposed is such that there will be a significant increase in the environmental impact of the total user compared with the approved user, to the extent that the decision to modify the consent was not in accordance with s 96(2)(a) of the EP&A Act.

The applicant relies upon obiter remarks made by Lloyd J in Concrite Quarries Pty Ltd v Wingecarribee Shire Council (2000) 108 LGERA 166, to the effect that he applied a test as to whether the proposed modification will result in any increase in the environmental impact of the total development compared with the approved development, to ascertain whether or not the consent as modified would be in respect of substantially the same development. I am unable to see anything in the judgment of Lloyd J in Concrite that confirms the application of such a test.

It is important to appreciate that s 96(2) authorises a consent authority to modify the consent if "it is satisfied" that the development is substantially the same development. The requirement pursuant to s 96(2)(a) is the satisfaction rather than the fact that the development will be substantially the same development following modification.

In Corporation of the City of Enfield v Development Assessment Commission and Another (1999) 199 CLR 135 at 150, the High Court distinguished between a stipulation in direct terms and a requirement that turns upon the satisfaction or opinion of the relevant authority. It is not for the relevant authority itself to determine the former as a matter of its opinion whereas, in respect of the latter, the existence of the opinion or satisfaction is to be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker.

In Fernance Family Holdings Pty Ltd v Newcastle City Council (2000) 110 LGERA 66, Bignold J held that where the question as to whether the compared developments are "substantially the same" development reasonably admits of different conclusions, the ultimate decision as to which conclusion is correct is a finding of fact.

In Vacik Pty Limited v Penrith City Council (Stein J, NSWLEC, 18 February 1992, unreported), Stein J adopted a meaning for "substantially" where used in the earlier s 102(1)(a) of the EP&A Act as "essentially or materially or having the same essence" . In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 at 440, Mason P expressly agreed with the view taken by Stein JA. Mason P also said, at p 439, that in the context of s 102 the verb modify meant "to alter without radical transformation (see Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414 at 421)". In Standley Stein JA also reiterated the view he expressed in Vacik.

Although the approach may not now be appropriate in all contexts following the determination of the High Court in Enfield, nevertheless, the judgment of Stein JA in Londish v Knox Grammar School and Others (1997) 97 LGERA 1, particularly at p 8, explains the test which should be undertaken in respect of a provision such as s 96(2)(a) "to the effect that if the opinion by the decisionmaker was not vitiated by irrelevant consideration and one which was reasonably open to make, the Court will not review the substance of the decision" .

The evidence shows that the development of the haul road had been the subject of consideration by the council over a period of years. As a consequence of that consideration the Court is satisfied that the council was familiar with the nature and extent of the use. No further works were proposed in the application for modification. Even if the present applicant is correct in that there will be a significant increase in the environmental impact of the haul road that, nevertheless, does not necessarily preclude a conclusion that the development, to which the consent as modified relates, is substantially the same development as that already permitted. The extension of the hours of operation alone does not change the inherent character of the development itself. There may be some additional environmental impact but that is a matter to be considered as part of the deliberations on the merits. The only criteria stipulated by the SEE to be changed is the hours of operation. Notwithstanding the extension of the operating hours, the development remains a haul road for the purpose of transporting coal from the Angus Place Colliery to Mt. Piper Power Station to be carried out generally in accordance with the development application and the SEE, as required by the conditions imposed in 1992.

In the circumstances the Court is satisfied that it was reasonably open for the council to conclude that the development as modified is substantially the same development as the development for which consent has already been granted.

It is not contended by the applicant that the council did not consider whether the development as modified is substantially the same development but rather that the application sought approval for development that was not substantially the same. The Court rejects the argument on the basis that it involves the application of an incorrect test.

The Court finds the opinion that the development as modified is substantially the same development as that originally approved is an opinion that was reasonably open for the council to make.

Compliance with s 96(2)(c) of the EP&A Act and cl 72B and cl 73 of the EP&A Regulation

In order to apply the relevant statutory regime it is necessary to determine whether the original development application for consent was an application to carry out designated development. The applicant does not seek to challenge the validity of the determination of the original development application made in 1992. It is not appropriate, therefore, to determine whether that original development application was an application to carry out designated development otherwise than by reference to the development application the subject of consideration and determination. The application for development consent itself, the report of the Environment Services Manager and the consent are in evidence.

The council considered a submission from the company that the proposal did not constitute designated development. The council resolved on 13 April 1992 that the development was not designated. This conclusion was supported by advice from a consultant planning firm, separate legal advice and advice from the Department of Planning. Accordingly, the Court accepts that the appropriate clause in the EP&A Regulation is cl 72B.

Clause 72B(6) requires that during the period of 14 days referred to in subcl (2), during which the application must be notified or advertised, any person may inspect the application and any accompanying information and make extracts from or copies of them.

The uncontroverted evidence of Mr Kellaway is that when he attended the council office on 12 June 2000, in response to the notice published in the Lithgow Mercury newspaper, the only document produced to him was the executive summary of the ERM noise report. The council officers who attended to his enquiry could not locate any other documents. A complaint is raised by the applicant that the executive summary of the noise report was not supported by any data.

Neither of the council officers who gave evidence asserted that the application for modification was produced to Mr Kellaway at any time nor has any explanation been proffered for the omission to exhibit the application. The only evidence is from a town planner, Mr Mark Fowler, who gave evidence that on 7 June 2000 he was directed by the Manager of Environmental and Planning Services, Mr Andrew Muir, to arrange for the second modification application form and the executive summary of the acoustic assessment by ERM, which accompanied it, to be available for inspection on that day.

There is no evidence that the letter dated 6 June 2000, addressed to council by Coal Link and including the application to modify the development consent, was ever exhibited.

The council did not receive the detailed noise report by ERM until 14 June 2000. Immediately upon its receipt Mr Kellaway was notified.

Mrs Jennifer Ann Kellaway gave evidence of a conversation with the Mayor on 28 June 2000 as follows:- On the night of 28 th June 2000 Shann and I went to Council. Before the Council Meeting, I spoke with the Mayor. Shann was also present. The conversation took place with words to the following effect. I said "there was a notice advertised in the local newspaper that an application was available for inspection, but no application has been made available even though Shann has come into Council and asked to see all the papers. We still had not seen any application." The Mayor said "it is now the 28 th June and fourteen days have now run from the 14 th June when you were told that the papers were available." I said "the 14 th June is irrelevant, as the Coal>Link submission is dated 20 th June and we only learned of its existence when Shann found it included in the 26 th June 2000 Council Meeting papers. In any case, fourteen days can only start to run when an application is made available, and Shann went twice to Council to see the documents as advertised, but we still have not seen any application. Apart from the advertisement, we are entitled to see the application if there is one, under section 12 of the Local Government Act, so would Council please let us see it? We are wondering if any fresh application was actually made as required by the 1999 Council Consent. All we are asking for is to be allowed fourteen days as advertised so we can make a proper submission". The Mayor did not respond to me on these points.

In Maybury on behalf of Kurri/Weston District Concerned Citizens Action Group v Minister for Planning and Alumino Australia Pty Ltd (1995) 87 LGERA 154, Stein J considered the effect of breaches of s 84(1)(a) and (b) of the EP&A Act and cl 38(a) and (b) of the EP&A Regulation as those provisions then applied to the notification of designated development. The EP&A Regulation prescribed the manner of exhibition of a notice and the form of the notice to be given in respect of a development application, pursuant to s 84 of the EP&A Act. Stein J categorised the requirement of giving notice as being one which is either strict or requires substantial compliance. His Honour was not required to go further and consider whether the requirement to make the application and documents lodged in support of the application available for inspection was one that required strict compliance. Section 84 of the EP&A Act, at that time, required a notice to be exhibited and for each notice to be in, or to the effect of, the prescribed form. Clause 38 of the EP&A Regulation specified that a notice required to be given under s 84 of the EP&A Act shall contain notice that the development application and accompanying environmental impact statement may be inspected at the places and dates specified. Although the requirements pursuant to s 84 were different in form they were to the same effect as cl 72B of the EP&A Regulation.

The Court is satisfied that the failure to produce the application and all of the accompanying information at the time Mr Kellaway responded to the notice and the subsequent failure to rectify that omission or oversight results in a breach of the statutory obligation which, at the least, required substantial compliance. At the time Mr Kellaway attended the council offices on the first occasion the council was in possession of the application for modification itself and the covering letter which made submissions in support thereof. Neither of these documents were produced to Mr Kellaway at that time or subsequently. The omission to produce these vital documents means that there was not substantial compliance with the provisions of the legislation.

The failure of the council to comply with the EP&A Regulation does not invalidate the development application. The failure to make the application and accompanying information available deprived persons, who may have elected to make submissions, of an opportunity to be fully informed for that purpose and in particular, Mr Kellaway. In order that they could either decide whether to make a submission or to determine the content of any submission. The requirement of cl 72B of the EP&A Regulation is, therefore, an important requirement.

As Stephen J said in Scurr and Others v Brisbane City Council and Another (1973) 133 CLR 242 at 251 - 252, the object of such regulation is to provide the council with the views of those who oppose an application and relieve the council as consent authority of "the special burdens associated with decision-making when only one side of the argument is known" . Furthermore, as I have just said, it provides objectors with an opportunity to make their views known.

It is the view of the Court that there has been a clear breach of cl 72B of the EP&A Regulation and that, accordingly, in the absence of substantial compliance the applicant is entitled to a declaration of invalidity of the development consent.

No submission was made on the part of the council that the Court should decline to grant relief in the exercise of its discretion. Even if such a submission had been made the public participation provisions of the EP&A Act and the EP&A Regulation are made in the public interest and, in particular, in the interest of those persons who are most likely to be affected by development.

The Court has already held that it was open for the council to determine that the application for modification was in respect of substantially the same development. The failure to comply with the notification and exhibition requirements of the legislation, therefore, does not invalidate the application. It remains on foot.

The effect of the declaration will be that the development consent is invalid. Notwithstanding the invalidity of the consent, the development application may still be relied upon and be processed by the council in accordance with the EP&A Act and the EP&A Regulation.

The effect of the failure to pay the prescribed fee.

The prescribed fee was paid to the council on 20 June 2000. It had not been paid at the date of notification and throughout most of the exhibition period. The EP&A Regulation cl 71A provides that an application for modification of the development consent "is to be accompanied by the fee prescribed by clause 105" . The wording of cl 71A is to be compared with the wording of other clauses, such as cl 72B of the EP&A Regulation which uses the imperative "must" .

The decision by the NSW Court of Appeal in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312, determined that where an environmental impact statement in the prescribed form does not accompany the development application, as required by s 77(3)(d) of the EP&A Act (in its then unamended form), the development application is incomplete and ineffective until there is substantial compliance with the statutory requirement. It is only then that a development application is completely or effectively "made" . Section 77(3)(e) then required that a development application shall be accompanied by the prescribed fee. In the course of finding that the subject development application had not been made, Fitzgerald JA said at p 323 as follows:- A development application in the prescribed form which is not "made" in the manner prescribed by s 77(3)(c) or s 77(3)(d) and s 77(3)(e) is not "made" in the prescribed manner.

In Remath, whether the development application had been made at the date of amendments to the EP&A Act was a vital consideration for determining whether the unamended EP&A Act continued to apply pursuant to the relevant savings and transitional provisions. Alternatively, the development application was to be dealt with under the provisions of the Act as amended.

In my opinion the same considerations do not arise in the present case. Clause 72B of the EP&A Regulation applies to "an application under s 96(2)" . Clause 72B(2) requires that such "an application… must be notified or advertised" . No question as to whether the application is complete arises in the context of cl 72B. The validity of the application is not at that stage in question. The clause requires only that the application and any accompanying information must be made available for inspection.

Although ultimately the Court does not need to decide the question in order to determine the validity of the council's determination, I am inclined to the view that a failure to pay the prescribed fee until after the exhibition period commenced does not invalidate the actions of the council on that account alone. If, however, a prescribed document is not lodged, and hence not exhibited, that could lead to a different conclusion. An omission to include essential information in the application or a failure to lodge essential documents required to accompany the application before exhibition takes place could have a direct bearing on whether there has been substantial compliance with the requirements of the EP&A Regulation. The question that arises in the present context is not whether the development application is completely or effectively "made" but rather whether all of the relevant documents that comprise "the application and any accompanying information" have been made available for inspection and copying.

Furthermore, if that is not right and the non-payment of the prescribed fee was the only breach then, having regard to the technical nature of that breach and its lack of relevance to the notification and exhibition process, the Court would have to give serious consideration to the exercise of its discretion not to make any orders. If the non-payment of the prescribed fee at the relevant time was the sole basis for granting relief in the circumstances of this case the Court would have exercised its discretion not to grant relief by making a declaration or consequential orders.

The argument in support of the allegation that the council failed to afford a reasonable opportunity to make submissions and for these submissions to be taken into account by the respondent to some extent flows from the arguments put in respect of the alleged failure to comply with the statutory requirements.

The context of the application to modify the consent, the invitation to make submissions and the exhibition of the application and supporting information must be considered in conjunction with the history of the making and determination of the original development application in 1992 and the first application for modification of that consent in 1999 followed by the trial undertaken pursuant to the first modified consent and the participation of objectors in that ongoing process.

Whether the objectors were given a reasonable opportunity to be heard and to make submissions is gauged against the actual steps taken by the council to provide each of them with the information they required in relation to the impact of noise including the expert advice thereon provided to council.

It was not unreasonable, in the Court's opinion, for the council to allow a period of 14 days for submissions to be made.

Mr Kellaway, on his own account and as a representative of a group of objectors, was given the opportunity to address the two council meetings and those persons who had an interest in doing so made written submissions. Although there was a time constraint, even the noise consultants previously engaged by Mr Kellaway were able to respond within the given time.

Nevertheless, the actions of the council notifying the individual by letter and the public by advertisement arguably gave rise to the legitimate expectation that, if required, all the documents referred to would be produced for the purpose of enabling them to give consideration to making a submission. The council failed to meet the expectation fostered by the notification.

Although slightly different considerations apply, there is no reason to make a separate declaration of invalidity based on this ground. The question of invalidity is determined by the failure to comply with the legislative regime.

The limited role of the court reviewing the exercise of an administrative discretion is explained by Mason J in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at p 40 - 41, as follows:- The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.

There is no evidence to suggest that the council adopted 38dB(A) as the background noise level for the purpose of assessing the impact on nearby residents at night. Condition 1 of the consent as modified is to the contrary effect and requires that the background noise level be assessed from time to time as follows:- The level of noise emanating from the transport of coal on the coal haul road shall not exceed a L Aeq sound pressure level equivalent to the measured background, L A90T , measured over a 15 minute time period, plus 5dB(A) when measured at any point within 10 metres of any residential receptor.

This is recognised by the EPA in its letter to council dated 12 July 2000 where it advised the council that the noise assessment in the ERM report does not demonstrate compliance with council's consent condition. The letter goes on to say that "The report is inadequate to demonstrate compliance and Coal>Link, or its consultant, needs to provide additional information. In this case this may necessitate repeated attended monitoring under representative weather and operating conditions" . This reflects the common understanding of the Court in respect of the common way in which a condition in the form of condition 1 would be applied in practice.

The alleged failure to properly consider the interests of the residents and the assessment based upon a one day exposure only, along with the apparent haste in convening the meetings on 26 June 2000 and 28 June 2000, need to be regarded in the light of the history of the consideration of the development dating from 1992. It is obvious from a perusal of the documentary evidence provided to the Court that the use of the haul road has been a contentious issue over the whole of that time. The residents have made representations in respect of the haul road from time to time. The council has responded by including them in the assessment process. The council had available to it the ERM report and the response by Wilkinson Murray. It recognised the threat to the amenity of nearby residents, particularly at night, by maintaining condition 1.

The EPA does not claim a role in the regulatory process other than as an advisor to the council. It agreed to review the assessment made by ERM and provide comments to the council regarding compliance with the noise assessment and council's development conditions.

In the Court's opinion it cannot be said that the council's determination was so unreasonable that no consent authority properly advised could have reached the same decision in circumstances where the council as the consent authority has imposed a condition which strictly limits the operation within a well defined noise criteria. If the applicant, Coal Link, is unable to comply with the conditions of consent then the consequence will be that night time operations cease. That is a reasonable outcome.

Whether or not the meeting of 26 June 2000 was unconstitutional is an issue raised only in submissions but does not arise out of the points of claim. Thus it is not a matter for determination by the Court in these proceedings.

Whether the EPA is the appropriate regulatory authority

By letter dated 18 May 1999, the EPA advised the council that the operation of the haul road is not a scheduled activity under any environmental legislation currently administered by the EPA. Further, and in addition, the EPA noted that the activity would not be a scheduled activity under the Protection of the Environment Operations Act 1997 ("the PEO Act") when it came into force on 1 July 1999. This advice was furnished notwithstanding that the EPA had issued a pollution control approval to Coal Link with respect to the Mt. Piper haul road on 30 October 1992. The relevant conditions of the approval have been set out earlier in this judgment. The pollution control approval purports to be issued pursuant to s 17K of the Pollution Control Act 1970 on the basis of an application dated 13 October 1992.

The applicant, nevertheless, persisted with the issue although ultimately it was not made clear to the Court whether the claim is that by virtue of the PEO Act the power to approve activities controlled by that Act overrides and subsumes any control over those activities pursuant to the EP&A Act or whether, as a consequence of the provisions of the PEO Act, the EPA becomes the consent authority for the purposes of the EP&A Act. There is no express provision in either Act directed to the latter point.

A consent authority is defined in the EP&A Act. There is no room for the EPA to assume the role of consent authority, as defined, for the purposes of the EP&A Act. The submission in that respect is rejected. Furthermore, s 7 of the PEO Act provides that nothing in that Act affects any of the provisions of any other Act or any statutory rules or takes away any powers vested in any person or body by any other Act or statutory rules. These provisions make it clear that irrespective of any role the EPA or the council may have under the PEO Act, there is no change to the powers, duties and obligations of a council as a consent authority under the EP&A Act.

Environment protection licences may be issued for the purposes identified in s 43(a) to s 43(d) of the PEO Act.

Division 5 of Pt 4 of the EP&A Act applies to integrated development which is development that requires development consent and, inter alia, an environment protection licence under s 43 of the PEO Act. Division 5 of Pt 4 of the EP&A Act applies in terms only where a development application is lodged with the council.

Pursuant to s 93(4) of the EP&A Act, an approval body is precluded from varying the terms of an approval granted for integrated development for which development consent has been granted other than to make variations that are not inconsistent with the development consent.

Section 93(5) provides:- Subsection (4) does not prevent:

(a) the modification, in accordance with section 96 or 96A, of the development consent at any time, or

(b) if a development consent is modified as referred to in paragraph (a) before the expiration, lapsing or first renewal, whichever first occurs, of the approval, the modification in accordance with law of the approval to any necessary consequential extent, or (c) the exercise by the approval body of any of its other functions, such as the issuing of orders, the suspension or cancellation of an approval or the prosecution of offences.

As a matter of construction, therefore, not only does the council remain the consent authority for the purposes of the EP&A Act, following the commencement of the PEO Act, there is no fetter placed upon the subsequent modification of a development consent to integrated development.

The applicant relies upon the definition of coal works in Pt 1 of Sch 1 to the PEO Act as follows:- Coal works that store or handle coal or carbonaceous material (including any coke works, coal loader, conveyor, washery or reject dump) at an existing coal mine or on a separate coal industry site, and that:

(1) have an intended handling capacity of more than 500 tonnes per day of coal or carbonaceous material, or

(2) store more than 5,000 tonnes of coal or carbonaceous reject material except where the storage is within a closed container or building.

The council does not suggest that the capacity of the haul road will be less than 500 tonnes of coal per day.

The applicant adopts a meaning of the word "conveyor", as used in the definition of coal works, to include a road. Furthermore, recognising that the coal haul road is outside the site of the coal mine itself, the applicant argues that the coal haul road must by its very nature be a separate coal industry site. The term " separate coal industry site" is not defined.

The Shorter Oxford English Dictionary defines a conveyor as "that which conveys or transmits, especially any mechanical contrivance for conveying grain in a mill, timber in a saw-mill, etc" . The Australian Oxford Dictionary refers to a thing that conveys (to transport or carry). Reference is also made to a conveyor belt. The Macquarie Dictionary defines a conveyor as "a contrivance for transporting material, as from one part of a building to another" .

In the Court's opinion, if the draftsperson had intended to include a coal haul road as part of the activity described as coal works then they would have done so expressly. The description of coal works denotes a place or building where coal or carbonaceous material is stored or treated as part of an industrial process. Given the derivation of the word "handle" , the Court adopts a meaning where something is done as part of a process with the object of affecting a purpose. Although the purpose of the haul road is to transport the coal from the mine to the power station, the coal is not dealt with during that operation in a way that changes its quality or character. The road is on a site separate to a coal mine or coal industry site and there is no activity akin to processing.

The Court is not satisfied that the haul road is coal works as defined nor, therefore, is the EPA a regulatory authority for the purposes of the PEO Act.

The application for the making of a declaration in the form propounded by the applicant in respect of this issue is rejected and dismissed.

The Court makes the following orders:- 1. A declaration that the determination by the Lithgow City Council of an application to modify development consent No. 105/92 notified to Coal Link on 27 June 2000 is void.

2. The amended application class 4 is otherwise dismissed. 3. The exhibits may be returned. 4. Costs reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.